DECISION This is an appeal against an Order dated the 28th of March, 1974 by the Presiding Officer of Labour Court No. II, under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter called the 'Ordinance').
2. The facts necessary for the disposal of this appeal are these, The respondent made an application on the 26th of June, 1972 under section 25-A of the Ordinance stating therein that he was appointed in the appellant's-Com- pany on the 20th of April, 1971 and continued in that appointment till the 20th of December, 1971, when his services were terminated but again on the 16th of March, 1972 he was taken back under the Governer's directives and continued till the 12th of May, 1972. According to the respondent the post in which he was working was a permanent one but his services were terminated on the 12th of.May, 1972 without any show- cause notice and for any justifiable reason in law. The termination dated the 12th of May, 1972 was challenged and the respondent prayed for re-instatement in service with back benefits.
3. In para 7 of the application the respondent stated as under ''That the applicant brought the grievance to the notice of the employer vide registered letter No. 141 dated 6th of June, 1972 but the employer did not r^ply to that letter'*. As the appellant had challenged the fact that he has received any grievance petitition from the respondent it would be useful to reproduce the finding of learned Court on that issue :-- ''Now I come to legal objection raised on behalf of the respondent with regard to the non- maintainability of the application. In this connection it is urged on behalf cf the respondent that no grievance petition was sent by the applicant whereas a copy of grievance petition dated 9- 5-1972 Annexure *B' to the application clearly shows that the same was sent by the applicant to the respondent, lt appears that the respondent in his reply statement instead of specifically denying the factum of receipt of grievance petition rather stated in a luke warm manner that the grievance notice did not appear to have been received by them. These words clearly indicate that the averments of the applicant have not been specifically and categorically denied by the respondent.
Besides when the applicant was subjected to cross-examination no question worth the name was put to him if he did not give any grievance petition to the respondent as alleged by him. Failing which the presumption would be that the factum of notice having been received by the respondent from the applicant was admitted by the respondent." The reply in respect of para 7 of the application reads as under1-- "The respondent do not appear to have received grievance notice dated 6th June, 1972 as stated in paragraph 7 of the application and put the applicant to strict prove thereof". The learned Court had made a mistake in his conclusion that no question was put to the respondent in respect of the alleged notice dated the 6th of June, 1972. A direct question was put if he had got a copy of the letter dated the 6th of June, 1972. The answer is as under :-- "I have not got the copy of the letter dated 6-6-1972 which I sent to the respondents nor do I have receipts." I do not think any more direct question could have been put to the respondent in respect of the alleged grievance notice. If the respondent did not have receipt of the alleged letter of grievance which he states he had sent it the only conclusion one can arrive at is that no such grievance letter was sent. Mr. Brohi, the learned Representative for the respondent tried to take protection under the ignorance of a workman, but this is not permissible in law. Had it been a question of interpretation of some document I may have taken an indulgent view which could benefit an ignorant illiterate workman. The applicant, it may be mentioned by the way, is not an illitrate person. He has signed his application in English, and, therefore, that benefit isi also not available to him. The provisions of Standing Order 25-A are man-U datory and non-compliance thereof is fatal. In this connection a reference may1 be made to a Judgment in the case of Nasim Silk Industries v. The Fifth Sin& Labour Court and others (1). In this connection a reference may also be made to an earlier case of Saleemson Ltd. of the same High Court of Sind & Baluchistan reported in PLD 1973 page 1. I would hold that the respondent having not complied with the procedure under section 25-A the application was not maintainable.
5. In the next place Mr. S. M.
Yaqoob, the learned Advocate for the appellant contended that at the time when the cause of action arose Standing Order 18 was available to the respondent. He did not pursue his remedy under Standing Order 18 and, therefore, his application under section 25-A was not maintainable.
There is much force in this contention. Admittedly the services were terminated in the first instance on the 20th of December, 1972 and thereafter under the Governor's directive he was re-instated on the 16th of March, 1972 and then again dismissed from service on the 12th of May, 1972. Standing Order 18 was repealed on the 13th of April, 1972, it was, therefore, open to the respondent to have followed the procedure prescribed under Standing Order 18 and made an application to the Labour Court for redress of his grievance.
6. On the other hand, Mr. Brohi, the learned Representative for the respondent placed reliance on Exh. 4-D. It is a letter from the Assistant Commissioner and S. D. M.
Harbour, Karachi, dated 18th of March, 1972. It is at page 63 of the record of the Labour Court and reads as under :-- "It has been represented by Asfandyar & 7 others that they have been re- instated as badli workers and not in terms of Governor's directive. Their re-instatement was taken up only after the Labour Department have given a clear finding that they were not badli workers. As such it is unfair that they are re-instated as badli workers again. Please ensure compliance in terms of the Governor's directive. In this connection, if you have any doubts, the advice of the Labour Depart? , ment be sought by you. (Sd.) (Shafiq Ahmed Khan) P. C. S. Assistant Commissioner & S. D. M. Harbour Karachi. Copy forwarded to the Joint Director Labour, Karachi, for information and necessary action.'' It is noteworthy that under Martial Law Order 52 promulgated by Governor of Sind as Martial Law Administrator, Zone 'D' dated the 31st of March 1972, he could appoint Arbitrator for the area or areas to be specified in the notification on such terms and conditions as may deem fit. The Arbitrator had the power to re-instate a workman or allow relief or reject the application. There is nothing on the record to suggest that Mr. Shafiq Ahmed Khan has passed the above order as an Arbitrator. Moreover, as the (1) 1974 PLJ Kar. 80 last sentence would suggest he Jiad left the matter open for the directions of the Labour Department. Moreover, even if it was an order under M. L. O. 52, the remedy lay in a Complaint by the respondent or by the Arbitrator under paragraphs 13 and 14 and not by way of an application under section 25-A.
7. For the reasons given above, I would allow the appeal and set aside the Award of the learned Labour Court.