DECISION This is an appeal against an award of the learned Presiding Officer of Sind Labour Court No. 1, Karachi, dated June 28, 1973, whereby the learned Labour Court ordered the re-instatement of the respondent with full back benefits. The learned Advocate for the appellant, contends that the application under Standing Order 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance), was not maintainable, inasmuch as no grievance notice was given within 15 days of the occurrence of the cause of grievance to the employer. The respondent in his application under Standing Order 18 of the Standing Orders Ordinance, alleged as under :-- "That the petitioner worked diligently and honestly till 11th December 1970 when he was told verbally that he had been dismissed/* 2. It would appear from the above allegation in the application that the cause of action arose to the respondent on 11th December 1970.
3. In paragraph 6 of the application the respondent stated as under :-- "That petitioner sent many notices to the respondeat and finally a notice dated 3rd March 1971 through his Advocates against his dismissal 4. To this the appellant replied as under :-- "That the respondents received only one notice from the petitioner's Advocate dated 3-3-71 to which they duly sent their reply on 20-3-71 as per copy enclosed and marked 'A'.*'
5. At this stage it would be useful to mention that the notice dated 3rd March 1971, has been produced by the respondent. A perusal of the said notice would show that there is no reference to any previous notice by the respondent to his employer. The respondent, in his affidavit, stated that he had sent many notices to the appellant, including the one dated 3rd March 1971. To this again the appellant's witness, Muhammad Ather in his affidavit, emphatically denied that any notice except the one dated 3rd March 1971, was sent by the respondent to the Management. It is noteworthy that Muhammad Ather was not cross-examined on this issue at all. The respondent had filed his affidavit in October 1971, while the affidavit of Muhammad Ather was filed in November 1971. It would appear that the appellant had been relying all along that the respondent had sent no other notice, except the one dated 3rd March 1971. If the respondent had sent any other notice, besides the one dated 3rd March 1971, Muhammad Ather would have been confronted with that notice, but this was not done. I would hold in these circumstances that the respondent sent only one notice in March 1971, in compliance with the provisions of Standing Order 18 of the Standing Orders Ordinance.
6. Mr. S. P. Lodhi, the learned Representative for the respondent very strenuously contended, that the appellant had not taken the point that the application under Standing Order 18 of the Standing Orders Ordinance, was not maintainable as no grievance notice was given within the time stipulated. It is true that no such objection was taken. It is, however, a mixed question of fact and law. The respondent cannot be said to have been taken by surprise. The case of the Management from the very beginning, i.e. from March 1971 when they replied to the notice dated 3rd March 1971, was that the respondent had sent only one notice and no other notice. The respondent, therefore, cannot be said to have been taken by surprise. All that'I have to see is as to what is the effect of the notice dated 3rd March 1971 sent to the employer regarding the cause of action. I would hold, relying upon the case of Saleemsons Limited reported in PLD 1973 Kar. 1, that the provisions of Standing Order 18 of the Standing Orders Ordinance being mandatory, the same having not been complied with the application under S. O. 18 of the Standing Orders Ordinance was not maintainable. The appeal is accordingly allowed. The award of the learned Labour Court is set aside.