JUSTICE (RTD.) SAGHEER AHMED QADRI, (CHAIRMAN).--- The appellant Saeed Ahmed filed grievance petition under section 46 of IRO, 2002 before the learned trial court mentioning the facts that he initially was appointed as Line Sardar a workman in the respondent-mills; that his services were illegally terminated and he challenged his termination in grievance petition No,197/2001 decided on 11.05.2004 while reinstating him which was further challenged by the respondents in honourable High Court in F.A.O. No,120/2004 and under a comprise the appellant was reinstated vide order dated 22.11.2005; that subsequent to his reinstatement respondents as were annoyed by his earlier litigation without any lawful justification through an oral order dated 07.01.2008 he along- with Ameer Bakhsh were not allowed to enter in the mills premises; that he issued grievance notice through registered post and challenged his oral termination vide order dated 07.01.2008 with a prayer that while setting aside the said order he be reinstated in service with all back benefits.
2. This grievance petition was replied by the respondents-mills through written reply raising four preliminary objections on the ground that as services of the appellant were not required, hence notice under Para 12(1) of Standing Orders, Ordinance, 1968 was issued informing him that his services were not required and was offered avail the benefits of gratuity and one month's pay accordingly but the appellant without any lawful justification and without issuance of any grievance notice filed the grievance petition; that he had no cause of action to file the grievance petition with ultimate prayer that it be dismissed.
3. The learned trial Court recorded the statement of the appellant Saeed Ahmed as PW-1 wherein he reiterated his stand mentioned in the grievance petition with addition that he sent grievance notice to the respondents on 17.01.2008 Ex.P.4. He also got exhibited documents Ex.P.1 to Ex.P.6 including the postal receipts and acknowledgement receipt of the grievance notice. He was cross- examined and learned counsel for the appellant closed the evidence. On the other hand Muhammad Jameel representative on behalf of the respondents appeared as RW-1 and submitted his affidavit Ex.R.1 and counsel for the respondent closed the evidence.
4. The learned trial court vide impugned judgment dated 21.03.2014 dismissed the grievance petition on the ground that as grievance notice was issued by the appellant through an advocate, hence the compliance of provision of Section 46(1) of IRO, 2002 was not done as according to said provision the grievance notice was to be issued/ sent by the petitioner himself or through his shop- steward or Collective Bargaining Agent. In this respect reliance was placed on 2012 PLC 458 titled Shahid Akhtar Baig v. Chief Executive, Ittehad Chemicals Ltd. which was based upon on a judgment passed by the honourable Supreme Court of Pakistan cited as PLD 1980 SC 80 titled Syed Muhammad Hussain v. Messrs Pakistan Tobacco Co. Ltd. and another. The other merits of the grievance petition were not discussed nor decided by the learned trial court. Feeling aggrieved the appellant has preferred this appeal.
5. Learned counsel for the appellant contends that the impugned judgment is against law and facts of the case. Learned counsel argued that although there is no evidence available on record that grievance notice Ex.P.4 was ever issued/ sent by an advocate on behalf of the appellant but the learned trial court only on presumptions as it was written in English language, hence was sent by an advocate decided the grievance petition only on technical ground; that the facts and circumstances of the present case are distinguishable than the judgment relied upon by the learned trial court specially the main judgment passed by the honourable Supreme Court of Pakistan i,e, PLD 1980 SC 80. Prayed that while allowing the appeal, grievance petition filed by the appellant be allowed.
6. On the other hand learned counsel for the respondents has opposed the arguments advanced by the learned counsel for the appellant while supporting the judgment passed by the learned trial court with further arguments that as grievance notice was sent by the appellant through counsel, hence the grievance petition was not maintainable in these circumstances.
7. I have heard learned counsel for the parties and perused the records of the trial court minutely.
8. There is no denial to the fact that the provision of Section 46(1) of Industrial Relations Ordinance, 2002 are similar to that of section 25(1) of IRO, 1969 as in both of the provisions it was specifically mentioned that grievance notice be sent by an aggrieved person himself or through shop steward or Collective Bargaining Agent. The learned trial court while observing that grievance notice Ex.P.4 was in English language, hence it must have been issued by an advocate, dismissed the grievance petition.
9. It is clear from the statement of the appellant recorded before the learned trial court that he himself sent the grievance notice when he clearly stated: I sent grievance notice to the respondent through registered post on 17.01.2008.
He was cross-examined and learned counsel for the respondents throughout cross-examination never challenged not even suggested that said grievance notice Ex.P.4 was ever sent by the appellant through his counsel. If the written reply of the respondents is seen no such objection was ever raised. Even if the statement of RW-1 Muhammad Jameel in shape of affidavit is seen it is nowhere stated if grievance notice was ever sent through an advocate.
10.If the judgment recorded by the learned trial court is seen, it seems that during the arguments learned counsel for the respondents raised this objection while citing the judgment i,e, 2012 PLC 458 supra and the learned trial court only on the basis that as grievance notice was written in English language presumed that it might have been written and sent by an advocate. If the facts narrated in the Muhammad Hussain's judgment passed by the honourable Supreme Court of Pakistan (supra) is seen, the issuance of grievance notice through an advocate was not a controversial fact rather admittedly grievance notice was sent through an advocate and this objection was raised before the learned trial court and ultimately it was decided by the honourable Supreme Court .of Pakistan that grievance notice was required to be sent by grievance petitioner himself or through shop steward or Collective Bargaining Agent. Here in this case no such evidence is available on the records nor it was ever admitted by the appellant. If the grievance notice Ex.P.4 present on the records is seen, no doubt it is recorded/ written in English language and thumb impressed by Saeed Ahmed the appellant/grievance petitioner but B. it does not contain any signature or name of any advocate through whom allegedly it was sent. The presence of thumb mark and name of applicant/ sender shows that it was sent by the appellant/grievance petitioner himself. There is no condition present under the provision of Section 46(1) of IRO, 2002 or any subsequent legislation on such subject that a grievance petitioner cannot get the assistance of any other person in writing such grievance notice while transmitting the same to his/ her employer for getting redressal of the grievance. In these circumstances when there is no evidence on the records that grievance notice was ever sent by the appellant through any counsel/advocate, therefore, the application of both of the judgments cited by the learned trial court in the present facts and circumstances of this case are not applicable, therefore, the conclusion drawn by the learned trial court and dismissal of the grievance petition only on this technical ground is not justified.
11. The learned trial court did not discuss nor considered other evidence and aspects available on the records while dismissing this grievance petition, hence while setting aside the impugned judgment dated 21.03.2014, matter is remanded to the learned trial court with the direction to dispose of the same after hearing the parties on merits within one month positively. File be consigned to the records room after due completion. The trial court's records be sent back immediately.