The respondent, who was employed in the appellant organization since 2nd April, 1974 was deputed to work at the appellant's project in Iraq under the terms and conditions laid down in the agreement, dated 6th May, 1979. However, it appears that the respondent actually proceeded to Iraq in the month of November, 1979. According to the appellant organization, a domestic enquiry was held against the respondent as he had falsely comp--lained that 2 dead hens had been cooked in the Mess established for the employees of the M. C. P. At Iraq. It is further the case of the appellants that on the basis of report of the enquiry officer, who not only found the charge against the respondent established but also recommended stringent punishment against the respondent, the services of the respondent were terminated and he was repatriated to Pakistan. On the other hand, the case of the respondent is that on 23rd June, 1981, without any justification and reason, the Incharge of the Appellants' project at Iraq relieved him to his duties and assignments at Iraq and verbally advised him to report back for duty to Pakistan and accordingly he returned back to Pakistan and for duties at the Jamshoro Unit from where he had been deputed to the Iraq project.
At Jamshoro, the respondent was advised to wait. Thereafter, by office order. Dated 27th July, 1981 under the signature of the Deputy Manager, Workshop, M. C. P. Jamshoro, the services of the respondent were terminated. These orders purport to have been passed on the basis of Telex No. B S. 5352, dated 28th June, 1981, said to have been received from Project Manager of the M. C. P. At Iraq. The said telex, however, has not been produced by the appellants.
2. The respondent challenged the orders of his termination of services through a grievance petition filed before the learned Vlth Labour Court, Hyderabad, which has allowed the same and directed the appellants to re--instate the respondent in service but at the same time has allowed the appellants an option to hold a fresh enquiry against the respondent within 6 months from the date of this order, and has made the award of back benefits to the respondent dependent upon the result of that enquiry, It is common ground that no such enquiry has been held against the respondent by the appellant organization. Aggrieved by the said decision of the learned Labour Court , the appellant organization has come up in appeal to this Tribunal.
3. Mr. Ibrahim Soomro, the learned counsel for the appellant organiza--tion, has assailed the impugned decision of the learned Labour Court on 2 grounds, namely : -
(i) that the Labour Court at Hyderabad had no jurisdiction in the matter as the services of the respondent had been transferred to the .Iraq Project and hip services were in fact terminated in Iraq and
(ii) that the respondent had remedy at Iraq against the termination of his services as per terms of the agreement entered into by him with the M. C. P.
4. Mr. Ibrahim Soomro, however, was unable to satisfy me that the services of the respondent had in fact been terminated at Iraq. The respon--dent, in his grievance petition, had asserted that on 23rd June, 1981, the Incharge of the appellant's Project at Iraq had relieved him of his assign-- ments at Iraq and verbally advised him to report back for his duty at his parent department, i. e. M.
C. P. At Jamshoro, and that accordingly he had come back to Pakistan and reported for duty at the Jamshoro Workshop. In his evidence before the learned Labour Court , he reiterated the above asser--tion. He strongly denied the suggestion that his services had been terminated at Iraq by the Project Manager at Iraq. Raes Akhtar Khan, the Deputy Manager, Jamshoro, filed an affidavit before the learned Labour Court asserting that the services of the respondent had been terminated at Iraq on 26th June 1981. He, however, admitted that he was not the Deputy Manager of the Workshop at Jamshoro at about the time when the services of the respondent were terminated. Furthermore, admittedly he has neither personal knowledge of the fact that the services of the respondent had been terminated at Iraq nor did he produce any order or letter under the signature of the Project Manager at Iraq, terminating the services of the respondent, while the latter was at Iraq. Mr. Ibrahim Soomro, the learned counsel for the appellants sought to rely on the office order, dated 23rd May, 1981 by which the services of the respondent are said to have been terminated at Iraq. This order purports to have been issued by the Personnel and Admi--nistration Officer of the appellant organization at its Iraqi Project. However, the office order in question does not bear the signature of the Personnel and Administration officer and is an ordinary typed copy of the alleged office order. Moreover, there is not an iota of evidence on record that the said order was served upon the respondent. Mr. Ibrahim Soomro also sought to rely upon another office order, dated 14th June, 1981 by which the services of the respondent had been terminated. If the services of the respondents were in fact terminated by the office order, dated 23rd May, 1981, it is not understood what was the necessity or the purpose of issuing the subsequent order, dated 14th June, 1981. This office order purports to have been issued by the Project Manager of the M. C. P. At Iraq but in fact does not bear his signature. There is an endorsement on the office order by Syed Basharat Ali, the Deputy Manager, Workshop of M. C. P. At Jamshoro, that it is a true copy but neither the original order bearing the signature of the Project Manager at Iraq was produced nor Syed Basharat Ali was examined before the learned Labour Court . To establish that in fact it is true copy of the original order. If the appellants in fact were relying on this order the original order should have been produced before the learned Labour Court , which was not done. It may also be pointed out that though this office order purports to have been issued when the respondent was still at Iraq, there is neither any evidence to indicate that it was served on the respondent at Iraq nor that a copy of the order was sent to him at his address in Iraq. From the fact that copy of this order meant for the respondent has been sent to his address in Hyderabad Pakistan, it seems evident that the termination order in question was not served upon the respondent in Iraq
5. The termination of services of the respondent suffers from another defect. The services of the respondent had been terminated on the ground that he had planned and observed an illegal strike starting from 11th June, 1981. The expression "strike" has been defined in clause (xxo) of the I. R. O., 1969, as follows :- "Strike"-The expression means-
(a) a cessation of work by a body of persons employed in any establish--ment acting in combination ;
(b) a concerted refusal of any number of persons, who are or have been so employed to continue to work or to accept employment ;
(c) a refusal under a common understanding of any number of such persons to continue to work ox to accept employment.
There appears, however, to be no evidence to indicate that any of the ingredients of strike as contained in the above definition have been established in the instant case. The sole allegation against the respondent was that he had complained that 2 dead hens had been cooked in the Mess meant for the employees of M. C. P. At Iraq. Even if the respondent did make such an accusation and the accusation was baseless there is no evidence that either the respondent himself went on strike or that he had instigated others to go on strike.
6. Since the services of the respondent had been terminated at Jamshoro by the office order dated 23rd July, 1981 which appears to have been served upon the respondent on 5th August, 1981, the grievance of the respondent arose within the jurisdiction of the Labour Court at Hyderabad and the said Court was entitled to entertain the respondent's grievance petition.
7. It was next submitted by Mr. Ibrahim Soomro that the respondent had remedy at Iraq against the termination of his services under the agree--ment by which he was deputed to Iraq. Clause 14.5
(b) (i.e) of the agree--ment provides that an appeal shall lie against dismissal of the employee to the employer or to such responsible executive to whom the employer ha delegated such an authority. The mere fact that the respondent did not choose to prefer an appeal under the terms of the agreement does no dis-entitle him to take proceedings in accordance with the law against the termination of his services. Moreover, it is doubtful whether on the repatriation of the respondent to Pakistan, any provisions of the agreement could be in force.
8. For the reasons discussed by me above, find no merit in this appeal and would dismiss the same.