1. ' This appeal is against the decision/order dated 24-4-1984, passed by the Presiding Officer II Labour Court, Quetta whereby the appellants have been ordered to pay a sum of Rs,32,332 to the respondent Muhammad Safdar within one month of the passing of the order and a direction has also been given that "whensoever occasion arises for recruitment" by the respondent preferene will be given to the present application. (It should have been applicant).
2. ' An application under section 25-A, I.R.O. Was filed on 11-3-1984 by the respondent herein in the Court of the Presiding Officer II Labour Court Baluchistan Quetta challenging the order of termination of his services passed on 18-8-1983. And it was alleged therein that he was working in Pakistan Industrial Development Corporation for the last 18 years and was working at Pachinkoh Iron and ore Project at Nokundi as Transport Foreman when on 18-8-1983 his services were terminated vide orders dated 18--8-1983 "on the ground of funds". It was submitted that his termination was illegal and unlawful. He had submitted an appeal to the Secretary P.I.D.C. At P.I.D.C.
3. House, Karachi on 24-10-1983 in accordance with Rules and in spite of lapse of considerable time no order was passed thereon and ultimately the applicant got a notice issued to the respondent (Appellant herein) on 19-12-1983 as provided under section 25-A, I R.O. 1969 and despite the service of notice the respondent has not redressed the grievance hence this application and it was prayed that "in view of the submissions to respectfully pray that the termination order No,10P- 17(PF)83/4496, dated 18-8-1983 may please be set aside and the applicant be restored to his duties with retrospective effect with all back benefits in the interest of justice.
4. ' A reply statement was filed wherein preliminary legal objections were taken, it was said that:-
(a) That application was barred by time.
(b) That no notice as required under section 25-A of I.R.O. Has been served upon the respondent.
5. This Hon'ble Court in the circumstances, has no jurisdiction to entertain the application.
(c) Without prejudice to the foregoing objections, the alleged notice was issued beyond the period of limitation, therefore, even otherwise can not be treated as a valid notice.
(d) The P.I.D.C. Is running under the authority of Central Government and employees are governed by its Rules and, therefore, Standing Order is not applicable by virtue of proviso to section 1(4) of Standing Orders Ordinance.
(e) That since Standing Orders Ordinance is not applicable, therefore, even otherwise the applicant cannot approach the Labour Court under section 25-A of I.R.O. 1969 as an application under section 25-A of I.R.O. Can be maintainable only by a worker as defined in I.R.O.
(f) That termination of applicant was as a result of abolition of post of Transport Foreman. It was a case of termination simpliciter and, therefore, question of conducting an enquiry did not arise.
(g) That without prejudice to above, the applicant was performing a duty of supervisory nature. His wages was approximately Rs,2,600 per month. In the circumstances he cannot be treated as a worker.
(j) The applicant is estopped by his conduct to challenge impugned order.
6. ' On merit the agreement referred to in para.2 of the application was denied. It was contended that actually post of Transport Foreman had been abolished and resultantly applicant was terminated.
7. It was also asserted that the termination order has been passed strictly in accordance with law and Rules applicable to applicant. It was denied that any appeal was received by the respondent from applicant. To the contrary applicant submitted an application for clearance of dues.
8. ' The respondent Muhammad Safdar, examined one Ehsan Yousaf as his witness and also appeared for himself while the appellant produced one Mr. Abdul Hameed, Assistant Manager, P.I.
9. D. C. Head Office.
10. ' Though evidence was on record to the effect that Muhammad Safdar was performing the duties of supervisory nature and according to himself his pay was Rs,2,700 but the learned Presiding Officer did not address himself to all the preliminary legal objections and confined his decision to the objection whether the application was barred by time and not maintainable in law. After considering the facts established before him and the provisions of section 25-A, I.R.O. He gave a finding that there was unexplained delay in making the application before the Labour Court and also in issuance of grievance notice, the "Applicant not having approached this Court for the redress of his grievances, if any within the time prescribed under section 25-A of the Industrial Relations Ordinance, 1969, the claim of the applicant is barred by time and not entertainable under the law. However as per his interpretation to section 25(5), I.R.O. He found himself competent to order the payment of the following amount:-
(i) Gratuity from 1966 to 1983 (22 months)Rs.22,200.
(ii) Pay for the month of August, 1983. Rs. 2,553.
(iii) Notice pay for three months. Rs. 7,599.
11. Total Rs.32,332 ' And ordered the appellants to pay the same to the respondent herein. It was also ordered that the Services of the applicant (Safdar Malik) were terminated under general retrenchment and when financial position of the establishment improves and the need arises for recruitment, preference would be given to old employees i,e, including the applicant.
12. ' Against this order of the Labour Court passed on 24-2-1985 this appeal has been filed and it has been contended by Mr. Abdul Hafeez Amjad, the learned counsel for the appellant that since the grievance notice was held to be not issued within the prescribed time and the application itself was held not maintainable, the application under section 25-A should have been dismissed. It was also urged by the learned counsel that the respondent was a Foreman and his duties were of supervisory nature the Labour Court had no jurisdiction to entertain the claim. About the award of Rs,32,332 to the respondent it has been vehemently urged that the application under section 25-A, I.R.O. Nor the alleged grievance notice contained any such claim. The claim of the respondent was only the setting aside of the order of termination and it was prayed that he should be reinstated with back benefits.
13. ' The learned counsel appearing for Muhammad Safdar (respondent) tried to challenge the finding of the Labour Court regarding the non-maintainability of the application. This finding was against the client and goes to the root of the application. It was the respondent who should have preferred the appeal. He has also not filed any cross-objections. Being confronted with this situation, Mr. Raja Rab Nawaz, Advocate submitted that the principles contained in Order XLI, rule 33, C.P.C. Be applied in this case and he may be permitted to show that the finding of the Labour Court about the maintainability of the application was erroneous. Without entering into the controversy whether the provisions of Order XLI, rule 33, C.P.C. Is attracted in the instant case I invited him to show how that finding was erroneous. The learned counsel thereupon submitted that his client had filed appeal and reasonable time should have been allowed and placed reliance on 1987 PLC 582 and 1982 PLC
863. There may be no cavil with the principle laid down in these cases but the cases do not advance his case for the reason that the appeals mentioned by him relate to the period prior to the issuance of grievance notice. Even if it is conceded that the grievance notice was issued after waiting for some time from filing the appeal the delay that has occurred thereafter is unexplained.
14. After the issuance of notice the application under section 25-A has to be filed within 3(1/2) months which has not been done in this case neither there is any explanation for the delay nor any application seeking condonation. The finding of the Labour Court is, therefore, not open to any challenge. Raja Rab Nawaz, next contended that the respondent is a workman within the ambit of I.R.O. That too is of no avail. It is well-settled by now that a valid grievance notice within prescribed time is a prerequisite to invoke the jurisdiction of the Labour Court and application not fulfilling conditions prescribed under section 25-A, I.R.O. Clutched the jurisdiction not given by law.
15. The Labour Court was restricted to/grievance notice and once it was held that the application under section 25-A, I.R.O. Made by the respondent was not maintainable, the Labour Court was left with n jurisdiction and the direction of the Labour Court to make payment of Rs,32,332 could not be made. In subsection (5) of section 25-A of I.R.O. Relied by the learned Presiding Officer, it is laid down that "in adjudicating and determining a grievance under subsection (4) the Labour Court shall go into all facts of the case and pass such orders as may be just and proper in the circumstances of the case". It only means that the Labour Court has the jurisdiction to go behind a dismissal order and to see for itself as to whether on the facts and circumstances of the concerned case it was justified or not, both on merit as well as law. I am of the view that Labour Court was restricted to the grievance notice and that subsection (5) of section 25-A, I.R.O. Does not make the Labdur Court a benevolent despot. In the instant case the termination of service of the respondent was on account of the abolition of post and the Presiding Officer has not given the finding that the termination order was unjustified on facts or law.
16. There is another reason to declare the award of Rs,32,332 as illegal. The amount and the manner of its determination is certainly disputed. It can only be determined by assessing the evidence which in the instant case there was no occasion to place before the Court because the same was not put in issue and was beyond the prayer contained in the application.
17. ' For the above reasons the order of payment of Rs,32,332 given by the Labour Court to the appellant is not sustainable. I accordingly allow the appeal and set aside the order and direction, resultantly the application filed by the respondent under section 25-A, I.R.O. Stands dismissed.
18. There would be no order as to costs.