' This instant appeal is directed against the order of Sind Labour Court No. II, Karachi who on 2-4- 1984, dismissed the grievance petition filed by the appellant under section 25-A, I.R.O., 1969.
2. The facts stated by the appellant in his grievance petition were that he was a permanent workman of the respondent and was appointed as a Mechanic. The appellant formed a trade union on 11-3-1983, and, therefore, he was subjected to victimization by the respondents. As a measure of victimization the appellant was kept standing in the sun for whole time of the duty hours and the result was that he fell ill and submitted a leave application alongwith a medical certificate. On 26-6-1983, he was charge-sheeted to which he replied on 30-6-1983. A domestic enquiry against him was ordered. On 17-7-1983, the appellant did not consider the Enquiry Officer to be impartial, therefore, he despatched a telegram on 16-7-1983 for changing the Enquiry Officer.
However, the appellant went to the factory on 17-7-1983, for participating in the enquiry but was not allowed at the gate by the Chowkidar and subsequently, he was dismissed. The intimation of dismissal he received on 30-7-1983. Then, he initiated the grievance petition.
3. The respondents at outset challenged the maintainability of the grievance petition on the grounds that the provisions of Standing Orders 10(b) and 11, clauses 6 and 8 and the Standing Orders 12 and 15 are not applicable in this case in so far as that the establishment never employed the workers exceeding 49 in number. No right accrued to the appellant. However, the domestic enquiry was adjourned from 10-7-1983 to 17-7-1983 to afford him a chance to attend for defence in the enquiry initiated against him but he manipulated and chose to remain absent even on 17-7- 1983 and during which the enquiry was completed ex parte and orders were issued for his dismissal. On 17-7-1983, at 12 o'clock he made an application that he was gate-stopped by Chowkidar and, therefore, he did not appear on 17-7-1983. The charge against him was that he remained absent from the duty.
4. I have heard the counsel of the appellant, Mr. Ali Ahmad and the counsel for the respondents, Mr. Malik Sher. The learned counsel, Mr. All Ahmad argued on the whole that the learned lower Court has fallen into error by not appreciating the evidence on the record. The lower Court relied upon the version of the respondents more than on the version of the appellant. In reply to this, Mr. Malik Sher made certain submissions.
5. I have perused the order and heard the arguments of the 2 counsel. The circumstances of the enquiry held do indicate that the appellant somehow or the other wanted to remain absent and did not want to face the enquiry . The bona fides of the Enquiry Officer was that he adjourned the enquiry from 10-7-1983 to 17-7-1983 and offered opportunity to the appellant to defend himself. The appellant did not attend on 17-7-1983 and remained at the gate from 10-00 a.m. To 12 Noon till the enquiry was over and subsequently made an application. These tactics indicate sad commentary on the behaviour of the appellant. The appellant was examined in the lower Court and he was cross-examined by the respondents. In cross-examination he admitted that he attended the enquiry at 10-00 a.m., but was informed by the Chowkidar that the Enquiry Officer had not arrived and was asked to wait. He did not make any further efforts to go and see whether the Enquiry Officer was present and was holding the enquiry but he waited at the gate up to 12-00 noon when perhaps he was informed that the enquiry was held and, therefore, he submitted an application at 12-00 noon. The enquiry papers show that at 12-00 noon he made an application. This circumstance would indicate-that he wilfully absented from attending the enquiry. In cross- examination he has admitted that on 14th and 16th June, 1983, he attended the Office of the Assistant Director Labour, West Division, Karachi. He has failed to produce any document or proof that the respondents employed more than 49 persons at one time in its establishment. His witness Waseem Ahmed was cross-examined and stated that on the relevant date, namely, 17-7-1983, he went to drink water at the factory although he was not then serving in the factory and he found that the appellant was standing at the gate at 10-00 a.m. He did not attempt to take the appellant inside the factory. This Waseem Ahmad was also not relied upon by the learned lower Court on the grounds that he was out of job and was not connected with the factory and he came to the factory merely to take water. The witness Qadir Yousuf on behalf of the respondents was subjected to searching cross-examination by the counsel of the appellant. He denies the fact that any leave application of the appellant was received by him on 20-6-1983 nor any medical certificate was received by him. Strangely enough, the appellant did appear on his own admission on 14th and 16th June, 1983, before the Assistant Director Labour, West Division, Karachi, and that he was absent from the duty from 14th to 16th June, 1983. The contentions of the respondents more or less are proved that the appellant remained absent.
6. I have considered anxiously the material on record and observe that the conduct of the appellant at the time of the domestic enquiry, was not commendable and he remained absent to avoid the enquiry. The Enquiry Officer, however, pronounced the dismissal of the appellant in spite of his absence from the enquiry.
7. But the moot point in this case appears to be that it is not proved by any reliable document that the establishment engaged or employed the workmen more than 49 at the relevant time. The statement of the respondents is that they employed less than 49 workers and as such the domestic enquiry was not required as is contemplated under Standing Orders 12(3) and 15 of the Standing Orders Ordinance. To this, the objection was raised by the learned counsel of the appellant that even if there are 20 employees, then an enquiry was to be held according to law. To this, it was argued by the counsel of the respondents that it is to be proved that these 20 employees were employed more than 12 months preceding the date of the enquiry. There is nothing on record to prove it. I, therefore, agree with the learned lower Court that the grievance petition filed by the appellant under section 25-A, I.R.O., 1969, is not maintainable.
8. I accordingly dismiss the appeal.