' This is an appeal against the decision, dated 6th June, 1978 of Punjab Labour Court No, 4, Faisalabad.
2. Abdus Salam Khan, appellant, was serving as Driver Instructor, Pakistan Railways, vide order, dated 23rd January, 1962 Exh. P-28, the appellant, when he was a driver at Lahore, consequent upon creation of a temporary post of Driver Instructor Grade-III (Scale Rs, 125 -225) for Faisalabad Shed, was transferred there and put to work as Driver Instructor Grade-III on his pay plus average link overtime. On 30th June, 1975 he was retired from service. On 2nd March, 1976 vide Exh. P-6 his pension was determined at 481.52. In this his increments of pay were not taken into account. On 7th February, 1977 vide Exh. P-7 his pension was again determined by taking into account his increments. His pension was determined on his basic pay plus 55 per cent of his basic pay as allowance which was given to the Drivers and other members of the running staff. The pension came to Rs, 375.13 after second commutation of pension. After this he made several representations, praying that instead of 55 per cent allowance, he be given average link overtime, which was more than 55 per cent allowance. First representation Exh. P-25 was made on 27th June, 1977 and the last representation was made on 17th September, 1977 but no reply was received. He, thereupon, served a grievance notice Exh. P. 1 through his counsel Syed Abdus Salam Shah, Advocate on 4th October, 1977. Reply Exh. R-3 was received on 28th November, 1977. He then filed a petition under section 25-A of the Industrial Relations Ordinance, 1969 on 30th November, 1977 before the Labour Court which dismissed the same on the following grounds : -
(1) That the grievance notice was invalid. Therefore, it shall be deemed as if no notice was served upon the respondent.
(2) That the petition was barred by time.
(3) That the petition was not maintainable because the appellant was a retired person and as such was not covered by the definition of a `worker' contained in section 2 clause (xxviii) of the Industrial Relations Ordinance, 19.9.
3. Aggrived by the above decision Abdus Salam Khan, appellant has preferred this appeal.
4. The first question for determination is as to whether the grievance notice served through a lawyer was valid. ' In my view, the Labour Court was not correct because a worker can serve the grievance notice through A his lawyer. I am fortified in this view by the judgment in the case. A. Aziz v. Pakistan Paper Corporation, Karachi and another wherein it was observed :- "It has first been argued by Mr. Abdul Latif Shakoor that no objection could be raised to the grievance notice under section 25-A having' been sent to the employer corporation through an Advocate. The learned counsel for the respondent, Syed lqbal Ahmad has relied on the decision reported in PLJ 1975 Kar.
239. In that decision the view taken by my learned brother Qureshi, J., was dissented from by my Lord Justice K. B. Marri, J. This question had come up before this Court in Constitutional Petition No, 105/76, and it was decided that a worker should bring his grievance in respect of any right (1) either himself or (ii) through his shop steward or (iii) through his Trade Union. Formerly only the Trade Union could agitate these matters before the Labour Court. But under this amended law the individual worker could also bring the individual grievances to the notice of the employer in writing.
This was an enabling provision of law inserted for the benefit of the workers. The ordinary right of a person to be represented by a lawyer was not taken away under this provision of law. The individual himself has to be understood or interpreted as distinguished from the Trade Union of which he happens to be member. But this does not mean that he is debarred from making the application or bringing the grievance to the notice of his employer through his lawyer. A workman may be incapacitated or he may be confined to bed on account of illness in which case it would be impossible for him to bring his grievance to the notice of his employer in writing. Idea is not to deprive such worker from approaching his employer through a counsel or an agent."
' In the case Abdul Ghafoor v. Sind Labour Court No, IV, Karachi and another it was held that a grievance notice under section 25-A of the Industrial Relations Ordinance, 1969 sent by an individual worker through his lawyer cannot be deemed to be invalid so as to deprive the worker of his benefits under labour laws. In this case it was observed that the word `himself' appearing in subsection (1) of section 25-A of the Industrial Relations Ordinance, 1969 would include a notice by an individual through lawyer and such notice would fall under the first category.
6. In the case Muhammad Irshad v. Fourth Sind Labour Court and another the same view was expressed.
7. In view of the above, I hold that the grievance notice served by the appellant through his lawyer was valid. The finding of the Labour Court on this is, accordingly, set aside.
Now the next point which requires determination is as to whether the petition was barred by time.
As already mentioned above, the last representation was made by the appellant on 17th August, 1977, therefore, his cause of grievance arose on that date. He, accordingly, served the grievance notice on 4th October, 1977 and after receiving its reply on 28th November; 1977 he filed a petition under section 25-A of the Industrial Relations Ordinance, 1969, on 30th November, 1977. According to sub-C section (2) of section 25-A of the Industrial Relations Ordinance, 1969, the employer has to communicate his decision in writing to the worker within 15 days of the grievance having been brought to his notice. According to subsection (4) of section 25-A, if the employer fails to communicate his decision1 2 3 8. ' within the period specified above or if the worker is dissatisfied with the decision of the employer, he can take the matter to the Labour Court within the period of two months from the date of the communication of the employer or from the expiry of the period mentioned in subsection (2). In the instant case the appellant filed his petition under section 25-A on 30th November, 1977 which was within two months from the expiry of 15 days and, therefore, the petition was well within time. I, accordingly, set aside the finding of the Labour Court on this point.
9. Now the last point for determination is as to whether the appellant who had been retired from service, was competent to file a petition under section 25-A of the Industrial Relations Ordinance, 1969. The definition of a worker in the Industrial Relations Ordinance, 1969, is given in section 2(xxviiij as under :- `Worker' and 'workman' means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be expressed or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off, or removal has led to that dispute but does not include any person-
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature.
10.
10. From the above, it is clear that a retired worker is not included in the definition of a worker and as such the petition filed by such a worker Pakistan Railways v. Junior Labour Court No, 5 and 2 others (1).Is incompetent. I am fortified in his view by the judgment in the ease Pakistan Railways v.
Junior Labour Court No, 5 and 2 others .
I, accordingly uphold the finding of the Labour Court on this issue and dismiss the appeal. PLD 1979 Kar. 490 PLD 1979 Kar. 441 PLD 1979 Kar. 730 1979 PLC 320