1. DECISION JUSTICE (R) ALI MUHAMMAD BALOCH, MEMBER.---This appeal has been preferred under Sections 54/55 of the Industrial Relations Act, 2010 by the appellant named above, whereby he had impugned the judgment dated 14.11.2012 passed by the learned Presiding, Officer, Sindh Labour Court No, IV, Karachi, through which the grievance application No,97 of 2010 was dismissed, wherein it has further been hold that the service appeal is also barred by limitation against the order of dismissal dated 26.02.2003.
2. Brief facts of the case as narrated by the appellant side that he was employed with the respondents as skilled worker in the department of quality Control since 27.8.1981 and he used to perform his duties with the respondents without any fault as asserted by the appellant that he was kidnapped by the gang of bandits and as such, his wife and children being infants/minors and wife being illiterate have become helpless to do anything rather such gang remained with the contact for ransom, whereas in such circumstances the family of the appellant has remained under some constant, harass and tears being penniless and/or also had any hope of survivors. He was released in the first week of March, 2004 from the unknown area of Balochistan, thereafter, he contacted with the respondents and finally he received a copy of his dismissal from service on 24.8.2004 on account of the charge of absence without any intimation A or prior approval of leave and that too with an ex parte proceedings without affording any opportunity to defend the allegations nor he could be under the fact and circumstances faced by him being subject matter of the grievance petition, soon after he submitted departmental appeal/representation to the respondents on 30.8.2004 and the such request was not acceded to. Appellant also filed a Constitution Petition before the Hon'ble High Court of Sindh bearing No, D-214/2005 in which it was observed that appellant is entitled to invoke the jurisdiction of the Federal Service Tribunal vide order dated 18.3.2005. Appellant approached to the Federal Service Tribunal bearing Appeal No,279(K)
3. (CE)/2005 and it was ordered by the Federal Service Tribunal for issuance of notice and the appeal was fixed for regular hearing. The said appeal was pending and same was abated by the judgment of Muhammad Mubeenus Salam by the Hon'ble Supreme Court of Pakistan. Appellant approached to the learned Labour Court which was registered as 294/2006 and the Hon'ble Supreme Court of Pakistan subsequently passed another judgment wherein it was held that the abatement order issued by the Registrar of the Services Tribunal is invalid as reported in SBLR 2008 SC 40 and such appeal deemed to be pending unless judicial order passed and accordingly passed on 09.7.2010 and communicated vide letter dated 13.7.2010. Appellant again approached to the learned Labour Court in grievance Application No,97 of 2010, in which the respondents have filed their written statement signed by one Syed Shujat Ali, A.D.G.M. Incharge of Respondent No,2.
4. Appellant filed his affidavit in evidence and he was duly cross-examined by the learned Counsel for the respondents and on behalf of the respondents one Hameedur Rehman without specifying his designation, power of attorney or authority on behalf of the signatory of the reply statement filed his affidavit in evidence who was also cross-examined by the learned Counsel for the appellant. Learned Labour Court after hearing both parties Counsel decided the matter being time barred.
5. Ch. Muhammad Latif Saghar learned Counsel for the appellant and Mr. Moin Azhar Siddiqui learned Counsel for the respondents have advanced their arguments in writing and they cited case laws. I have gone through their written synopsis and the record and proceedings of the case very carefully and have come to the following:- The learned Labour Court has misconstrued/misdirected itself while dismissing the grievance application and has failed to read and appreciate the evidence available on record particularly on the point that the signatory of the reply statement has not been produced and the person who has filed his affidavit in evidence on behalf of the respondents is not the signatory of such reply statement coupled with the fact that the learned Labour Court had not taken into consideration that the copy of dismissal order was handed over to the appellant on 24.8.2004 and soon after that he had submitted his representation on 30.8.2004, whereas this Tribunal on the same verdict has already been held in number of cases that in case the signatory has not been examined/produced in the Court, therefore, the contents of reply/ written statement cannot be taken a piece of evidence and same has not been relied upon against the appellant worker. Learned Counsel for the appellant has also submitted/cited various judgments of this Tribunal and also relied upon the judgments of the Hon'ble Supreme Court of Pakistan.
6. Learned Labour Court has further failed to appreciate that the Labour Court is not an Appellate Court of Federal Service Tribunal while judgments/decisions of the said Tribunal can be challenged before the Hon'ble Supreme Court of Pakistan and even not before the Hon'ble High Court of Sindh.
7. When the Hon'ble Federal Service Tribunal had admitted the appeal by considering the point of limitation remained beyond the control of the appellant as he was kidnapped by the unknown dacoit for ransom, how he could move any application for leave or even his family was not aware about his where about, as such, upon releasing from confinement he approached to the respondents and after getting copy of his dismissal he submitted departmental appeal well within time and thereafter appellant worker had approached to the Hon'ble Federal Service Tribunal by filing appeal, which was admitted for regular hearing. By meaning that all the latches/delay was condoned by the Hon'ble Federal Service Tribunal and after judgment of the Hon'ble Apex Court he filed his grievance petition before the learned Labour Court, hence the question of such delay is considered from the Judicial order passed by the Hon'ble Federal Service Tribunal and not beyond that. Learned Labour Court has only concerned that after passing of the judicial order in view of the judgment passed by the Hon'ble Supreme Court of Pakistan as reported in SBLR 2008 SC 40 there is no delay in filing of the grievance petition, hence the learned Labour Court had taken extraneous fact into consideration without appraising that the signatory of reply/written statement was not examined in the witness box and there is no reason to disbelieve the statement made by the appellant on oath in his grievance petition, service appeal and the affidavit in evidence, hence the learned Labour Court had misdirected itself while dismissing the grievance application being time barred by relying the judgment which was not with regard to the hierarchy of abatement andthen approaching to the Hon'ble Federal Service Tribunal and there was no delay in filing of the grievance petition or submission of fresh grievance notice as the departmental appeal firstly against the dismissal order can be treated as grievance notice in view of the Hon'ble High Court judgment on such account. The facts and circumstances of such cases are altogether are different and cannot be attracted with the instant case in which it is a settled law that in such cases no fresh grievance notice is required and departmental appeal can be considered as grievance notice, which admittedly was filed before approaching the Hon'ble Federal Service Tribunal, otherwise appeal under Section 4 of the Service Tribunals Act, 1973 cannot be entertained. On this point, learned Counsel for the appellant had relied upon the case laws, such as 2009 PLC 160, PLC 2009 Labour 44 and PLD 1975 Lah.
143. In view of the case laws as referred by the learned Counsel for the appellant, I hold that the same are directly applied in the present appeal.
8. It has been further noted that the respondents also raised objections regarding the proceedings conducted under the provisions of Removal from Service Ordinance and not under the provisions of the Standing Orders Ordinance, 1968 and on such analogy, the case law relied upon by the learned Counsel for the respondents was not of the "workman" as of the appellant in which the Hon'ble High Court of Sindh has specifically held in the case law as reported in PLC 2010 C.S. 1360 that even proceeding conducted under such law the worker has right to invoke the jurisdiction of the Labour Court which he did accordingly.
9. The grievance notice which can be in any shape including the appeal and/or representation in any form can be considered the grievance notice which is sufficient compliance of law, as evident from the above mentioned case laws. In this context the learned Counsel for the appellant advanced his arguments that the grievance notice and departmental appeal can be treated as same and to this effect he has relied upon 1984 PLC 49 and 1243, 1985 PLC 176, 1983 PLC 392, 1975 PLC 451 and 1988 PLC 323, 458 and 673. In view of the case laws cited above, I hold that the grievance notice and departmental appeal is one and same and the appellant acted legally and justly.
10. Signatory of the written/reply statement must be examined in the witness box, but he did not come in the box to face the allegations put forth by the worker/appellant/applicant by him and cannot be given evidentiary value as held by the Hon'ble Supreme Court of Pakistan in a case as reported in PLD 1972 SC 25 and the judgments of this Tribunal on the basis of such dictum laid down had decided in a number of appeals, such as, Nasreen Rashid v. Pearl Continental Hotel dated 15.12.2010, Appeals Nos, KAR-41 and 42/2013 Abdul Hafeez and Hajat Khan v. Pakistan Steel Mills dated 17.4.2014, Appeals Nos,KAR-13, 14, 16 and 17/2013 Syed Abrar and others v. Pakistan Steel Mills dated 18.8.2014, 1980 PLC 1025, 1989 PLC 810 and 1990 PLC 63 and 429. It is pertinent to note that the case laws relied upon by the learned Counsel for the respondents are irrelevant with the facts and circumstances of the present appeal and the same are hereby over ruled. The case laws relied upon by the learned Counsel for the respondents are also distinguishable to the facts and circumstances of the present appeal and not directly or indirectly relating the facts and circumstances of the present appeal and there is no reason to disbelieve the same.
11. In view of the above discussions and circumstances of the case and the case laws relied upon, I hold that the learned Presiding Officer, Sindh Labour Court No,IV, Karachi, has failed to apply its independent mind while passing the impugned order dated 14.11.2012 against the appellant, which is hereby set aside and the appeal in hand is allowed with direction to the respondents to reinstate the appellant in service with fifty percent (50%) back benefits within thirty days from the date of this decision.