' SYED SAEEDUDDIN NASIR, J.--- This Constitutional Petition is directed against order dated: 21.01.2014 passed by the learned Presiding Officer of Sindh Labour Appellate Tribunal in Appeal No,56 of 2012 by the petitioner against the respondent No,3 whereby the learned Presiding Officer of Sindh Labour Appellate Tribunal dismissed the appeal of the petitioner.
1. Brief facts of the case are that respondent No,3, who is an ex-employee of petitioner No,1 was dismissed/removed from service on 26.01.2009. Prior to dismissal, respondent No,3 was served with show cause notice. Further all other formalities viz-a-viz conduct of inquiry and relevant formalities were duly met at the relevant time. The Inquiry Committee as a result of disciplinary proceedings under provision of Sub-Regulations (1)(b), (1)(d) and (1)(h) of Regulations 44 of the NIT (Staff)
Service Regulations, 1967 dismissed the respondent No,3 having found guilty of disciplinary proceedings and misconduct.
2. The respondent No,3 at the time of his dismissal viz on 26.01.2009 was acting as Senior Assistant of NIT. The nature of employment of respondent No,3 at the time of his dismissal from service of the NIT was fiduciary in character and supervisory in nature.
3.
3. The respondent No,3 challenged his aforesaid dismissal order by filing Appeal No,51(K)(CS)/2009 before the Federal Service Tribunal (FST) at Karachi claiming to be a civil servant. However, the petitioners brought to the notice of learned Federal Service Tribunal that N.I.T (Staff) Service Regulations were non-statutory in nature and as such the employees cannot be considered as civil servants, therefore, the jurisdiction of Federal Service Tribunal could not have been invoked by the respondent No,3 under the circumstances of the case, upon which the learned Federal Service Tribunal, vide; order dated: 29.6.2010 dismissed the said appeal of the respondent No,3 and held that the respondent was not a civil servant within the meaning of Section 2(i)(d) of the Service Tribunal Act, 1973.
4. The respondent No,3 having failed in his appeal before the Federal Service Tribunal issued a grievance notice for the first time on 30.6.2010. Subsequently, on the basis of the same grievance notice, the respondent No,3 invoked the jurisdiction of the learned Sindh Labour Court No,V, the respondent No,2 herein by filing a grievance application No,60 of 2010.
5. The said Grievance Application was contested by the petitioner, inter alia on the ground of jurisdiction as well as limitation, however, the respondent No,2 vide; judgment dated: 21.3.2012 allowed the grievance application and set aside the dismissal order of the respondent No,3 dated: 26.1.2009, by declaring the same as illegal, so also on the ground that since the written statement was not signed by the petitioner, therefore, the version of the respondent No,3 was un-rebutted.
6. The petitioners impugned the validity of the order/ judgment dated 12.3.2015 passed by the respondent No,2 by filing an Appeal No,56/2012 before the respondent No,1, however, the said Appeal on behalf of the petitioners before the respondent No,1 was dismissed vide; order dated: 21.1.2014.
7. Mr. M. Masood Khan, learned counsel appearing for the petitioners has inter alia argued that the impugned order dated: 21.1.2014 of the respondent No,1 is illegal and unlawful, inasmuch as the same fails to take into account the determination of question of absence of jurisdiction before the respondent No,2; the respondent No,1 failed to take into notice that the respondent No,2 did not have jurisdiction to entertain the grievance application of the respondent No,3 on account of the fact that the respondent No,3 was neither a workman nor a worker within the meaning of Standing Orders Ordinance, 1968 and the Industrial Relation Ordinance, 1969. Therefore, the jurisdiction of Sindh Labour Court, the respondent No,2 could not have been invoked by the petitioner; the respondent No,1 failed to take cognizance of the fact that first of all the issue of jurisdiction of the respondent No,2 was to be determined in the first place before going into the merits of the case; the impugned order dated: 21.1.2014 is primarily based upon the presumption that the appellant was required to deposit the back benefits and current salary of respondent No,3, during the pendency of appeal, which provision of law is based on Section 55(9) of the Industrial Relations Act, 2010, whereas the same is applicable only in cases where there is no issue of jurisdiction of the Labour Court is involved; the Grievance Application under the Industrial Relation Ordinance, 1969 was filed beyond the period of limitation i.e, 30 days after the dismissal of the respondent No,3 from service of the petitioner and the same was misconceived remedy inasmuch as the respondent No,3 was neither a Worker or a Workman within the meaning of Standing Orders Ordinance, 1968 and the Industrial Relation Ordinance, 1969 considering his last held position at the time of his dismissal i.e, Ex-Senior Assistant, NIT Limited; that the respondent No,2 passed the order dated: 21.3.2012 acted in a haste by allowing the Grievance Application of respondent No,3 merely on the ground that the written statement filed by the petitioners was not duly signed by the petitioner and for lack of proper verification; that It was the duty of the respondent No,2 to consider and determine as to whether under the facts and circumstances of the case the claim of respondent No,3 was legally admissible or not on account of total absence of jurisdiction; that this important aspect of the matter was not only ignored by the respondent No,2, but the same was also overlooked by the respondent No,1, that the petitioners had filed an application under Order VI, Rule 17 of Code of Civil Procedure, 1908 for rectification of lacuna in the written statement as it did not bear their signatures and proper verification, however, the respondent No,2 did not allow the said application and proceeded to announce order on the grievance application of respondent No,3,turning down the written statement on a mere technicality as aforesaid; that even if there was no written defence available on the record of the case, it was incumbent upon the Court to examine the merit of the case, and on account of non-filing of the written statement, the claim of the respondent No,3 should not have been granted automatically without considering the factual and legal merits involved; that the respondents Nos.1 and 2 while passing their judgments completely ignored the facts that the petitioners issued show cause notice to the respondent No,3 on 14.2.2008 in accordance with Regulation 44(2) of the NIT (Staff) Service Regulation, 1967, whereas the reply of the respondent No,3 dated 21.2.2008 to the same did not offer any plausible explanation with regard to the irregularities committed by him in league with other employees in respect of negligent and fraudulent handling of certain dividend warrants and thereby causing huge financial losses to the petitioners and unit holders.
8. On the other hand, the learned counsel appearing for the respondent No,3, while controverting the arguments of petitioners' counsel has submitted that the petition is not maintainable under the law as the same has been filed without lawful authority; that vide; order dated: 25.6.2012 the learned Member Sindh Labour Appellate Tribunal (the respondent No,1) directed the petitioners to deposit before the Tribunal, within 30 days of the passing of the order by the respondent No,2 dated: 21.3.2012, all the back benefits and current salaries of the respondent No,3, however, the petitioners are neither ready to comply with the aforesaid order of the respondent No,1 nor are ready to reinstate the respondent No,3, therefore, the instant petition is liable to be dismissed; that the allegation on the basis of which the respondent No,3 was dismissed from the service was also referred by the petitioners to the "NAB" (National Accountability Bureau) Authorities against a number of persons including the respondent No,3, however, after proper investigation the "NAB"
(National Accountability Bureau) was pleased to declare the respondent No,3 as innocent and no Challan was submitted against the respondent No,3; that the grievance petition was well within time; no order of dismissal could be passed against the respondent No,3 inasmuch as the charge was not brought to the notice within one month as required under the mandatory provision of Clause 15(4) of the Standing Order Ordinance, 1968, and as such the dismissal order was unlawful as it was not passed by the competent authority.
9. We have heard the learned counsel for the parties, perusal the material available on the record of the case with their able assistance and having given anxious consideration to the same, we are of the view that admittedly the respondent No,2, the learned Sindh Labour Court No,V, Karachi, did not pass an order on the Grievance Application of the respondent No,3 on merits, while turning down the written statement filed by the petitioners merely on the ground that the same was not duly signed by the petitioner and for lack of proper verification, which was a mistake inadvertently committed by the petitioners by not getting the verification of the written statement signed and verified by the Principal Officer/Authorized Representative of the petitioners. The application of the petitioners under Order VI, Rule 17 read with Section 151, C.P.C. For the correction of the error in the written statement as aforesaid, was pending before the respondent No,2, who without deciding the same proceeded to pronounce judgment on the grievance application filed by the respondent No,3 without giving it a second thought that the same could be barred by limitation or that the Court could be devoid of the jurisdiction to adjudicate upon the same, which might not be vested with it.
10. The respondent No,2 dismissed the application of the petitioners under Order VI, Rule 17 read with Section 151, C.P.C. Holding that since the verification did not form part of the pleadings, and the aforesaid provision of C.P.C. Is for amendment of pleadings, therefore, the said application cannot be granted.
11. We are in serious disagreement with this interpretation of Order VI, Rule 17, C.P.C. given to it by the respondent No,2. It is an admitted position that since the verification at the foot of the pleadings verifies on solemn oath the contents of the pleadings mentioned in differcht paras of the same, which are stated and believed to be true by the deponent of such pleadings, is an integral and inseparable part and parcel of the pleadings. The respondent No,2 came to a gravely erroneous conclusion that verification is not part of the pleadings and therefore, rectification of the same cannot be allowed under Order VI, Rule 17, C.P.C. In order to meet the ends of justice, in our opinion, the learned respondent No,2 should have allowed the said application made by the petitioner for making up the omission in the written statement by getting the same signed and verified. Similarly the respondent No,1, by upholding the order of the respondent No,2 also came to an erroneous conclusion.
12. It is well accepted rule of procedure applicable to the signing and verification of pleadings that an omission to sign and verify was only an irregularity curable at any stage of the proceedings and not an illegality likely to result in dismissal of the suit. Therefore, at the best, in such a situation, the respondent No,1 the Sindh Labour Court-V at Karachi had to exercise its discretion and should have called the respondent to sign and verify the written statement/pleadings at subsequent stage. For, such a formal defect is rectifiable at any stage. Therefore, even on acceptance of the proposition raised by the applicants, the written statement filed by the respondent was not liable to be turned down on, account of informal defect and irregularity. Mere omission on the part of the respondent to insert the verification clause in the written statement did not entitle the respondent No,2 to non- suit the petitioner from the case before it. Such an irregularity, in our opinion, is not material enough to totally oust the respondent from pleading its case on merits, and the same can be cured by affording an opportunity to the party to rectify it at a later stage. In order to meet the ends of justice.
' In this regard guidance can be taken from the following judgments:
1. PLD 1967 SC 486 -- S.M. Ayub v. Syed Yusuf Shah and others, in this judgment it is held that; "Failure to sign or verify pleadings, not fatal to the petition."
2. 1981 SCMR 687 -- Ismail and others v. Mst. Razia Begum and others, in this judgment it is held that; ".... In these circumstances, the non-signing of the plaints by them at the proper stage was a mere irregularity and consequently the learned District Judge was entirely justified to direct that the said irregularity may be rectified."
3. 2000 SCMR 250 -- Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and others, in this judgment it is held that; "S.
36. Contents of petition. Failure of petitioner to file some Annexures along with petition which were not verified on oath was not fatal to the prosecution of the petition."
4. PLD 1991 SC 590 -- Faqir Muhammad and others v. Mst. Muhammad Bibi and others, in this judgment it is held that; "The pleadings may be signed by any person duly authorized by the party to sign, is allowed only to that party who could not sign the plaint etc. Because of his bona fide absence or other good cause such as an oversight or inadvertence."
5. PLD 1990 SC (AJ&K) 13 -- Muhammad Riaz Khan V. Sardar Rahim Dad and others, in this judgment it is held that; "If a power of attorney, vakalatnama or plaint is not signed by the party, his attorney or his counsel due to oversight or inadvertence, the detect is an irregularity which is curable by doing the needful, irrespective of the provisions contained in section 196 of the Contract Act. In all such cases the attorney or counsel acts in pursuance of the instructions of the party concerned, but a formal defect may occur due to mistake or negligence. The authority to do an act by a counsel or an attorney is there but same is not strictly in conformity with requirement of law in view of contents of the documents.Or due to an omission, such as non-signing of the document by the party or any other formal defect of like nature; these defects are regarded only as irregularities and not illegality."
' PLD 1988 Supreme Court (AJ&K) 42 -- Ghulam Mohiuddin and another v. Noor Dad and others, in this judgment it is held that; "This was violative of rule 14, Order VI, C.P.C. It is undenying that a suit cannot be dismissed for absence of signature of plaintiff on the plaint. This, again, is considered a formal defect, rectifiable at any stage. This, again, is considered a formal defect, rectifiable at any stage. In the present case, it may be said, as the plaint was not duly signed it suffered from this defect. The answer is that in the situation plaintiffs could have been asked to sign the plaint at subsequent stage. The suit could not be dismissed on this ground. The Court was empowered to call the plaintiffs to sign the plaint to do away with the defect."
7. PLD 2007 SC 362 -- Malik Umar Aslam v. Sumera Malik and others, in this judgment it is held that; "It may be noted that in the case of S.M. Ayub (ibid), which has been heavily relied upon by the learned counsel for appellant, this Court noticed that if defect in the pleadings is of such a nature that same would not be sufficient to non-suit the petitioner, amendment can be allowed, but if defect is of such a nature which if allowed to be cured will change the complexion of the proceedings, then the amendment cannot be allowed."
8. PLD 2005 SC 600 -- Sardarzada Zafar Abbas and others v. Syed Hassan Murtaza and others, in this judgment it is held that; ".... The Code contains such provisions under Order VI, rule 15, which requires the verification of pleadings on oath. Such verification is not to be signed in routine by the deponent but being on oath, it requires to be attested either by the Oath Commissioner or any other authority competent to administer oath. It needs hardly to be emphasized that every oath is to be practically administered. So far as the provisions of civil law are concerned, such verifications generally are of directory in nature. An omission to do so can be rectified subsequently during trial and even the Court can direct such rectification."
9. PLD 1983 Karachi 99 -- Ali Muhammad and others v. Gulfam and another, in this judgment it is held that "The Courts have allowed an unsigned plaint to be signed by the plaintiff even at the appellate stage. The omission to sign the plaint or that it is signed by an unauthorized person is merely an irregularity which can be cured during the proceedings. It is not an illegality which may render the entire proceedings as illegal and void. If such irregularity is cured before the suit is finally decided then in the absence of any other material defect, the plaint cannot be rejected on this ground."
10. PLD 1991 Karachi 414 -- M/s. Pakland Scientific Production v. M/s Pioneer Insurance Company Limited and others, in this judgment it is held that; "It is requirement of Order VI, Rule 14, C.P.C. That every pleading is to be signed by the party and his pleader or in case the party is unable to sign the pleading, it should be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.
' The aforesaid provision has been interpreted more than once by the superior Courts. It has been laid down that non-signing of the plaint at the proper stage is mere irregularity which can be cured at subsequent stage."
"Therefore, the dismissal of the suit on the said ground by the learned trial judge was not warranted in law"
11. PLD 1980 Lahore 626 -- Ch. Riffat Hussain and another V. Asif Khan and another, in this judgment it is held that; "It is not necessary here to examine the provisions of the Code of Civil Procedure in relation to errors, defects and omissions in the signing and verification of pleadings, and their amendment for the purpose of rectifying defects therein (Ref. Order VI, rule 15). Suffice it to say that under the Code of Civil Procedure, the Court is empowered to and indeed in certain circumstances bound to allow errors and defects in the pleadings, including omissions to sign or verify pleadings, to be rectified for the purpose of determining the real matters in controversy."
12. 1990 CLC 301 [Azad J&K High Court] -- Muhammad Munshi and others v. Mst. Rakia Bi, in this judgment it is held that; "It is well accepted rule of procedure applicable to the signing and verification of pleadings that an omission to sign and verify was only an irregularity curable at any stage of the proceedings and not an illegality likely to result in dismissal of the suit. In this case, in the alternative, if it is believed that counsel was not duly engaged, on account of absence of signatures of the plaintiff, the inference would be that the signatures and verification of the pleadings was not that of an authorized person. In other words, it shall be deemed that the pleadings was neither signed nor verified. Therefore, at the best, in such a situation, the Court has to exercise its discretion and may call the plaintiff to sign and verify the pleadings at subsequent stage. For, such a formal defect is rectifiable at any stage. Therefore, even on acceptance of the proposition raised by the defendants, the suit is not liable to be dismissed on account of such defect."
13. 2000 CLC 1455 [Karachi] -- Qatar Airways PLC V. ANZ Grindlays Bank, in this judgment it is held that; "Even otherwise, non-compliance of the provisions of Rules 15 and 16 of the Order VI, C.P.C. Is a mere technicality and could be cured even at a later stage "
14. 2006 CLC 1426 [Lahore] -- Mian Muhammad lqbal and another v. Election Tribunal for District Okara/District Judge, Kasur and others.
"My understanding is that it was fully applicable to the case in hand because no doubt it was given while interpreting provisions of the Act of 1976 but the underlying principle was that law relating to verification as per Order VI rule, 15, C.P.C. On the civil side, was directory because no penal consequences for noncompliance were provided. ...."
"After holding that verification of election petition according to requirements of Order VI, rule 15, C.P.C. Is mandatory, my humble view is that if such defect occurs that is curable because Rule 71(4) of the Punjab Local Government Election Rules, 2005, equipped the Election Tribunal with the jurisdiction to allow amendment of the election petition in such a manner which in its opinion, be necessary for ensuring a fair and effective trial and for determining real questions in controversy but the Tribunal is prohibited from allowing any amendment to raise new grounds of challenging the election. Compass/scope of this provision of the Rule is wider as compared to that of Order VI, rule 17, C.P.0....
13. In the light of aforesaid judgments there is no cavil to the fact that the omission on the part of the petitioner to incorporate verification in the written statement and that also due to inadvertence was a trivial irregularity which could have been rectified at a later stage if the respondent No,1 had permitted the petitioner to do so by allowing the petitioner's application under Order-VI, Rule 17 read with Section 151 C.P.C. For amendment of pleadings.
14. The respondent No,1 should have adopted a lenient view on the application of the petitioners under Order VI, Rule 17 read with Section 151 C.P.C. By allowing the petitioners to annex signed verification to the written statement, which was already on record of the respondent No,2, for disposal of the case on merits. It is settled law by the superior courts of Pakistan that the court favours decision of the cases on merits and does not support technical knock-out of the same on the basis of trivial technicalities.
15. Therefore, we allow the petition in terms of the short order dated 12.08.2015 that the impugned orders of the Labour Appellate Tribunal and Labour Court below are set aside has not been speaking orders. The case is remanded back to the concerned Labour Court for a decision afresh on the merits, subject to the petitioner's depositing back benefits, which would otherwise be payable to the respondent No,3, within 15 days with the Nazir of this Court. The Nazir shall invest the amount deposited in some profit bearing scheme.
16. Within 15 days of the matter being first listed before the concerned Labour Court, the petitioners shall have the right to file the written statement which shall be taken on record and matter shall then be taken up for proceedings in accordance with law. The Labour Court shall decide the matter within four months from the date of this matter is first listed before it pursuant to this order in the light of guidelines given in this judgment with regard to limitation, and jurisdiction. This time we expect that the respondent No,2 shall pass a speaking order with special reference to the aforesaid guidelines given in this judgment.
' Above are the reasons for the short order announced in the open Court on 12.08.2015.