' This appeal is directed against the decision of the learned IIIrd Labour Court, delivered on 15th October, 1980, allowing the separate grievance petitions filed by the 19 respondents herein, and directing the appellants to re-instate them in service with full back benefits.
2. The services of the respondents, who were employed in the appellant establishment on different jobs and from different dates, were terminated orally by the appellant establishment on 27th March, 1980. They challenged the termination of their services before the learned Labour Court on the grounds, firstly, that the termination orders were mala fide and were on account of the fact that the workmen in the appellant establishment had formed a workers union to protect their interests against the unlawful and aggressive action of the Management, and secondly, the orders of termination of the services were oral and unlawful. The appellants on the other hand, contended that the respondent were all probationers and hence the Management was entitled to terminate their services without notice as provided in clause (2) of Standing Order 12. The grievance petitions were further resisted on the ground that the requisite grievance notices were received by them from the respondent after the expiry of the statutory period of 3 months prescribed in subsection
(1) of section 25-A, I. R.
0. The learned Labour Court repelled both these contentions of the appellants. It held that since the respondents had posted the grievance notices in time, therefore, they should be deemed to have complied with the requirement of law. In other words, it took the view that the material date was not the date on which each of the notice sent by post was actually received by the employer but on the date on which it was posted. It further held that though the probationer's services could be terminated without notice, the appellants had failed to establish that the respondents were probationers and that in any case, even in the case of probationers, the law requires that the orders of termination of their services should not only be in writing but also explicitly state the reasons for such termination.
3. I have heard Mr. Abdul Hameed Khan, the learned counsel for the appellants and Mr. S. P. Lodhi, who appeared for the respondents. Mr. Abdul Hameed Khan assailed the impugned decision on the very same grounds that have been repelled by the learned Labour Court, namely :-
(i) that the grievance petitions of the respondents were not maintainable as the requisite grievance notices were received from them by the employer after the period prescribed therefor under the law ; and
(ii) that the respondents were probationers, hence neither they were entitled to any notice for terminating their services nor was any order in writing required to terminate their services.
4. I regret that I am unable to concur in the view taken by the learned Labour Court that the material date in case of sending of grievance notices by post is that date of posting and not the date of receipt of the notices by the employer. Subsection (1) of section 25-A, I. R.
0., requires a worker to bring his grievance in respect of any right guaranteed or secured to him to the notices of his employer, in writing, within 3 months of the date on which the cause of such grievance arises, The material words in this behalf are, firstly, "bring his grievance to the notice of the employer" and "within 3 months of the date on which cause of such grievance arises". In other words, the law envisages that the grievance must actually be brought to the notice of the employer within 3 months of the cause of grievance having arisen. It would, therefore, not be enough merely to send on post cover to the employer, containing the requisite notice, within 3 months of the cause of grievance having arisen, for the grievance would be brought to the notice of the employer only when the communication is actually received by the employer. In Black's Law Dictionary, the word "bring" has been defined as :- "To convey to the place where the speaker is or is to be, to bear from a more distant to a nearer place, to make to come, procure, produce, draw to, to convey, carry or conduct, move."
' As such, according to the Dictionary meaning, when the law required that the workman must bring his grievance to the notice of the employer, it means that the notice must be conveyed to the place where the employer is at the relevant time, and further it must be conveyed within the prescribed period of 3 months. In the same Dictionary, namely Black's Law Dictionary, Revised Fourth Edition, the word "within" has been defined as "When used relative to time, has been defined variously as meaning any time before; at or before at the end of ; before the expiration of ; not beyond ; not exceeding ; not later than. Glenn v. Gavett., Tex, App., 84 S. W. d 515, 516.
' The use of the word 'within' as a limit of time, or degree, or space, embraces the last day, or degree, or entire distance, covered by the limit fixed,"
5. There is another strong reason for the view that it is not sufficient in cases where notice is sent by post that the cover containing the notice should have been posted within the period of 3 months irrespective of the date when the notice reaches the employer. According to section 27 of the General Clauses Act, 18,7, even in those cases where the law authorizes or requires any document to be served by post, service is to be deemed to be effected at the time at which the letter would be delivered to the addresses in ordinary course of post and not on the date of the posting of the letter.
6. It is thus clear that what the law contemplates that the grievance notice must actually be brought to the knowledge of the employer or be actually given to him within the prescribed period of 3 months i,e, within 3 months of the date on which the cause of grievance arose. A similar view was held by this Tribunal in the case of Mohammad All v. Dawood Cotton Mills Ltd. (Appeal No, KAR- 207/80, decided on 5th October, 1980). In that case the admitted position was that the grievance notice was dated 4th August, 1979, but was received through post by the employer on 13th August, 1979, after the period of limitation had expired. Repelling the contention that the grievance notice had been given in time, it was observed by this Tribunal as follows :- "The law provides that the aggrieved worker should bring his grievance to the notice of the employer within a months of the grievance having arisen. By the words "bring to the notice of the employer within three months" I understand that the grievance must actually be brought to the notice of the employer within 3 months. Since the appellant had brought his grievance to the notice of the employer after the statutory period of 3 months, the grievance petition is not maintainable and must, therefore, be dismissed on that account."
7. It next falls to be considered when actually the grievances notice from the respondents was received by the appellants. It has been conceded by Mr. Abdul Hameed Khan, the learned counsel for the appellants that the grievance notice in respect of 4 of the respondents, namely, (1) Yaqoob son of Raza, (2) Afsareen son of Mir Dad, (3) Mohd. Zada son of Fazal Ali and (4) Aitabar Khan son of Noor Akbar, were within time, and accordingly, their grievance petitions would not be hit by limitation. Mr. S. P. Lodhi, the learned representative for the respondent, has prepared a chart showing the dates on which each of the respondents sent his grievance notice by registered post, A/D, to the appellants, the dates on which they were received by the receiving post office and the dates on which, according to the endorsement of the appellants on the envelopes, the registered envelopes were received in the appellants' establishment. According to this statement, which is not disputed by Mr. Abdul Hameed Khan, the notices from respondents (1) Bakhtamir son of Sikandar Shah, (2) Azizur Rehman son of Shahnajar, (3) Khan Mohd. Son of Allah Noor, (4) Abdul Rehman son of Fazal Rehman, (5) Zardad Khan son of Hayat Khan, (6) Rabim Shah son of Mukkarram, (7) Faqir Mohd. Son of Abmad, (8) Taj Malook son of Mohammad Khan, (9) UmerZareen son of Hakam Jan, were received in the appellants, establishment on 28th June 1980. It was contended by Mr. S. P.
Lodhi, that no doubt the last date for service of the grievance notice on the employer was 27th June 1980, since the date of termination of services is to be excluded from computation, but as 27th June 1980, was a closed day, namely Friday, the limitation stood extended to 28th June 1980, when admittedly the grievance notices from the 9 respondents were received by the appellants. Section 29 of the Limitation Act provides that where any special or local law prescribes a period of limitation different from the period prescribed therefor in the Limitation Act, as in the present case, the provisions contained in sections 9 to 18 and section 22 are to apply, while the remaining provisions of the Limitation Act will not apply, subsection (1) of section 12 of the Limitation Act, which is applicable in the instant cases, provides that in computing the period of limitation the date from which such period is to be calculated shall be excluded. As such, 27th March 1980, the date on which admittedly the services of the respondents were terminated, has to be excluded for computing the period of limitation. On the analogy of section 4 of Limitation Act, Friday, the 27th June, 1980, on which date the factory of the appellants was closed is also to be excluded from computing the period of limitation. Accordingly, the grievance notices given by the aforesaid 9 persons as also the 4 other respondents, namely (1) Yaqoob son of Raza, (2) Afsareen son of Mir Dad, (3) Mohammad Zada son of Fazal Wali and (4) Aitabar Khan son of Noor Akbar, are, in my opinion, within time and their grievance petitions cannot be held to be non-maintainable on that account.
8. It next falls to be considered whether the respondents were probationers and whether their services have been lawfully terminated. Admittedly no letters of appointment to the respondent have been brought on record by the respondents as their claim is that the appointments were orally made. Furthermore, no record or document has been brought on record to show what were the terms and conditions of appointment of the respondents. As such, there is the bare word of the appellants that the respondent was appointed as probationers. On the other hand, the respondents have strongly denied that they were appointed as probationers and have contended that they have been regularly serving in the appellants establishment for much longer period than 3 months and in some cases for over one year. The appellants have not even cared to produce before the learned Labour Court either the register of employees, the register of payments or the attendance register. I am, therefore, inclined to agree with the view of the learned Labour Court that the respondents were not employed as probationers. However, even if the respondents were employed as probationers, though I hold a different view on this point, then also the termination of services of the respondents was in complete disregard of the provisions of clause (3) of Standing Order 12. The said clause requires that the services of a workman, and this would include permanent workmen, temporary C workmen, badlies and probationers, shall not be terminated, except by an order in writing which shall explicitly state the reason for the action taken. In the instant case, admittedly there was no order in writing terminating the services of the respondents, what to talk of explicit reason being stated for terminating their service. It is contended by Mr. Abdul Hameed Khan that clause (2) of Standing Order 12 provides that no notice is required to be given to a probationer while terminating his services and in support of his contention he sought to rely on a decision of a learned single Judge of the Karachi High Court in the case of Rasheed Textile Mills v.
Rafiq M. Wali (1). A perusal of the judgment in that case indicates that what the learned Judge had in view was a notice referred to in clause (1) of Standing Order 12 and not the order in writing, stating the reasons for termination of services required under clause (3) of Standing Order 12. A similar issue arose before this Tribunal in the case of Messrs Nawab & Company v. Rustom and 2 others (Appeal No, Kar785/807 decided on 1st December, 1980), where, while repelling the contention made on behalf of the employer that for terminating the services of an employee, no order in writing, as contemplated by clause (3) of Standing Order 12, is required, it was observed as follows :- "I also find no force in the contention of Mr. Zahid Hamid that no order in writing is required to be made by the employer or on his behalf while terminating the services of a probationer. Clauses (1) to (3) of Standing Order 12 read as follows :-
(12) Termination of employment.-(1) For terminating employment of a permanent workman, for any reason other than misconduct one month's notice shall be given either by the employer or the workman. One month's wages calculated on the basis of average wages earned by the workman during the last three months shall be paid in lieu of notice.
(2) No temporary workman, whether monthly-rated, weekly-rated, daily-rated or piece-rated, and no probationer or badly shall has entitled to any notice if his services are terminated by the employer, nor shall any such workman be required to give any {{FOOT NOTE}}
(1) 1976 PLC 181 {{FOOT NOTE}} ' notice or pay any wages in lieu thereof to the employer if he leaves employment of his own accord.
(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969), and thereupon the provision of the said section shall apply to the redress of an individual grievance.
' Clause (1) of the Standing Order is applicable only to permanent workers. In the case of such workmen, while terminating their services under the said clause, it is necessary to give them either one month's notice or pay in lieu of notice. Clause (2) is applicable to temporary workmen, including probationers and badlis. In their case, it is expressly provided that they are not entitled to notice or pay in lieu of notice. The notice referred to in clause (2) is the notice of one month specified in clause (I). Clause (3), however, is applicable to all workmen, whether permanent, temporary, badli or probationer. It lays down that an essential pre-condition for terminating the services of any workman, i. e. Permanent, temporary, badli or probationer, is the issuance of an order in writing which shall explicitly state the reason for the action taken. In the instant case, as admittedly no such order was issued by the appellant establishment, not only is the termination of services of the 3 respondents invalid on this account but further the appellant establishment is liable to be prosecuted for not complying with the mandatory provisions of the Standing Orders. Mr. Zahid Hamid, however, relied upon the decision in the case of Rashid Textile Mills in support of his contention that no order in writing need be passed or made for terminating the services of a probationer during the period of his probation. This decision, however, does not support the contention of Mr. Zahid Hamid, as all that it decides is that in case of a probationer no notice is required to be given to him while terminating his service. The decision is thus in accordance with the provisions of clause (2) of Standing Order 12. However, clause (3) of Standing Order 12 is applicable to all workmen, including probationers, and requires the passing of an order while terminating the services of any workman and further such order should explicitly state the reason for the action taken. As already stated, this is a mandatory requirement of law and violation of this provision is punishable under section 7 of the Sind Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968. Since no such order has been passed in the case of the respondents, even if it be assumed that they were probationers, though I am of the view that this plea of the appellant establishment is unfounded, the termination of services of the respondents would be invalid."
9. The upshot of the above discussion is that the appeal in respect of the 13 respondents, namely,
(I) Bakhtamir son of Sikandar Shah, (2) Azizur Rehman son of Shahnajar, (3) Khan Muhammad son of Allah Noor, (4) Abdul Rehman son of Fazal Rehman, (5) Zardad Khan son of Hayat Khan, (6)
Rahim Shah son of Mukkarram, (7) Faqir Muhammad son of Ahmad, (8) Taj Malook son of Muhammad Khan, (9) Umer Zareen son of Hakam Jan, (10) Yaqoob son of Raza, (11) Afsareen son of Mir Dad, (12) Muhammad Zada son of Fazal Wall and (13) Aitabar Khan son of Noor Akbar, fails and is accordingly dismissed, while the appeal in respect of the remaining 6 respondents, namely (1)
Mobin son of Mir Hassan, (2) Umer Muhammad son of Roshan Khan, (3) Deer Nawab son of Saif Shah, (4) Tahir Muhammad son of Amir Muhammad, (5) Teera Gul son of Barkat Shah, (6) Haji Nawab son of Amir Nawab succeeds and is hereby allowed.