DECISION ' This appeal originated from the grievance petition filed by respondent Muhammad Hanif. His case, as stated in the grievance petition, is that he was appointed as Steward in the Staff Cafeteria of Sheraton Hotel, Karachi in June 1987. On 30-6-1992 at lunch time, he got injured in the back bone due to fall of water tank while he was on duty. He got himself examined in the Social Security Dispensary on the next day i,e, 1-7-1992 and the doctor of that Dispensary sent him to Kulsoom Bai Valika Social Security Hospital where he remained admitted for about a week. After discharge from that Hospital he remained on leave on the recommendation of Social Security Doctor who also recommended light duty for him. But when he reported for duty on or about 12-11-1992. The Manager of Cafeteria refused to take him back on duty saying that he should come when he will be totally fit. He then approached the Personnel Manager on the same day but he too did not allow him to resume duty. Thereafter, the respondent went on reporting for duty every day continuously upto 11-4-1995, yet he was not allowed to resume duty. Instead he was served with a show-cause notice with allegations of absence without leave. In reply to the notice, he once again offered to resume duty but without any result. Thereafter, enquiry letter dated 19-4-1995 was issued to him.
Accordingly the enquiry was held and he was exonerated from the charges. But still he was not allowed to resume duty.
2. Meanwhile the Social Security Institution forwarded his case to the Provincial Mohtasib for the purpose of the respondent's medical examination by Medical Board. Thus, his case remained pending with the Mohtasib from 16-3-1995 to 31-10-1996 without any decision. The Mohtasib's ultimate decision was that the Hotel Management agreed to retire the respondent on medical grounds if he made such request, assuring further that maximum financial benefits admissible under the rules would be paid to him vide Mohtasib's order dated 31-10-1996. As the- Hotel Management stopped paying wages to the respondent from 1-7-1992, the Social Security and E.O.B.I. (Employees Old Age Benefits Institution) also did not make their contribution with the result that the applicant was unable to claim benefits secured to him under the law. As such he was constrained to submit a grievance notice dated 24/27-11-1996 to which the Hotel Management gave an evasive reply. According to him no question of his retirement ever arose except as suggested in the order of Mohtasib dated 31-10-1996.
3. In reply statement the stand taken by the Hotel Management was that the grievance petition was not maintainable because grievance notice was served in November, 1996 and grievance petition was instituted in December, 1996, though alleged cause of action admittedly accrued to the respondent in July 1992. Furthermore, his prayer for reinstatement was from 1-7-1992 though in para. Of grievance petition he has himself admitted that he served the grievance notice on 24-11- 1996. Accordingly the petition was time barred. Moreover, he has made several other prayers outside the scope of section 25-A I.R.O., 1969 and on that account too petition was not maintainable. The maintainability has also been challenged on the ground that he has not claimed or pleaded that his ouster from service was the result of Industrial Dispute nor that such ouster led to any Industrial Dispute. As for the respondent's injury the plea of the Management was that he did not sustain the alleged injury within hotel premises but he had received the same during performance of Haj as has been stated by him in reply to the show-cause notice. As for assignment of light duty to the respondent it was stated that there could not be any light duty of the steward in the Kitchen. It was denied by the hotel management that he reported for duty every day for years together but he was not allowed to resume duty. Though he had proceeded on Social Security leave from 1-8-1992 to 11-10-1992 no further extension was granted to him nor he had himself applied for the same. He did not produce any Social Security Certificate but continued to remain absent without leave from 12-10-1992. He was ultimately given show-cause notice on 11-4- 1995 (Annexure-A). On his denial of the charges made in the show-cause notice he was issued a letter of enquiry dated 8-5-1995 and Syed Rizwan Hassan was appointed as Enquiry Officer. On or about 2-3-1996 the respondent made application opting for retirement (Annexure R/1). His request was accepted and he was retired from service (vide Annexure-R/2). Reference has also been made to the applicant's letter (Annexure-R/4) stating therein that he was suffering from spinal pain and, therefore, was advised by Doctor not to work claiming further that he had not fully recovered. The further plea of the Hotel Management was that the respondent had himself invoked the intervention of the Provincial Mahtasib but his petition was dismissed vide order of the Mohtasib (Annexure-D). It was clear from the said order that the respondent had remained absent from duty from 1-7-1992 on which he was issued show-cause notice and in reply to that notice he had stated that he had sustained the injury during Haj. In the said reply he did not mention that he got the injury in the Hotel. The grievance notice which was unsigned was no notice in the eye of law. According to Hotel Management the respondent was required to produce Medical Certificate from Social Security as regards his fitness but he failed to do so. The Medical Certificate produced by him before Mohtasib, however, covered the period from 24-3-1994 to 21-4-1994 whereas the respondent's own claim was that he was injured and remained under medical treatment from 1-7- 1992. But that Certificate too showed that he was outdoor patient. The finding of the Mohtasib was that backache suffered by the respondent was the result of his fall during Haj which is also evident from his own application dated 26-7-1992 addressed to the Hotel.
3. I have heard the lengthy arguments submitted by the learned counsel of the parties and I have also gone through the massive record relevant for purpose of deciding the case.
4. Before discussing the case on merits I would like to refer to some legal objections. The first objection was that the grievance petition filed by the respondent was not maintainable for variety of reasons. In this connection my attention was drawn to the grievance notice which .Is a condition precedent to the filing of the grievance petition It is at Annexure-B in the Lower Court's record. It was obviously unsigned by the respondent. In the Lahore's case reported as 1984 PLC 842 grievance notice not bearing the signature of aggrieved workman was held not to be a legal notice. That being the position the grievance petition was not maintainable. Further, objection was that the said notice was dated 19-4-1995 though cause of action accrued to the respondent as far back as 12-11-1992. In his grievance petition he has clearly mentioned that he got injury in the hotel due to fall of water tank on his back on 30-6-1992 whereupon he got the treatment in the hospital and availed some leave but when he reported for duty on or about 12-11-1992 he was not allowed to resume duty. As such it was clear that cause of action accrued to him when he was not allowed to resume duty i,e, on 12-11-1992. But this grievance notice and grievance petition admittedly filed in 1996 were obviously hopelessly time-barred. It could not be believed that though respondent was fit enough to resume duty and he actually reported for duty on 12-11-1992 yet he was not allowed to resume. There was no indication on the record that when he reported for duty he produced any Medical Certificate of his fitness. It was also unbelievable that he continued to report for duty every day until he was served with show-cause notice. No doubt it has also remained unexplained why the Hotel Management did not take prompt action against the respondent for the unauthorized long absence but that could not be the reason for condoning the default on the part of the respondent. He should have shown his vigilance in getting his grievance redressed instead of throwing the blame on the Hotel Management for taking the alleged action.
5. It is not the case of respondent that cause of action accrued to him in the wake of order of retirement passed by the hotel management. This finds support from his grievance petition wherein he had made, the refusal of the hotel management to allow him to resume duty as the cause of action. Moreover, his retirement was ordered as is clear from the letter of retirement (Annexure-R/2 page 69 of the Lower Court's record) on the respondents' own request vide Annexure-R/1 page 67 of Lower Court's record). However his learned counsel Mr. Nafees Osmani had submitted in course of arguments that his offer to be retired was, conditional inasmuch as that he should first be reinstated and assigned light duty. I am sorry I could not persuade myself to agree with his view-point. First of all there could be no conditional offer for retirement. If all the offer of retirement be considered as conditional, it would be clear from the respondent's own letter referred to above that he wanted to be retired if it was not possible to put him on light duty. The perusal of his letter of request leaves no doubt that he had given two alternatives to the Hotel Management; First that he should be given light duty and two, if the first alternative was not possible, then he should be retired. Therefore, I am convinced that his retirement was made on his own request. This also finds support from the order of the Mohtasib wherein among other things he had recommended that due to his physical injury the Hotel Management showed willingness to give him retirement if he made such a request. Subsequently if he made somersault by going back on his request for retirement, by stating that neither he opted for retirement nor the question of his retirement ever arose, made absolutely no difference. In this connection the respondent's counsel complained that in spite of assurance given by the Hotel Management to the Mohtasib that he would be paid maximum financial benefits they did not honour their commitment. On perusal of the relevant record I have noticed that it was consistent stand of the Hotel Management that the payment would be made to him strictly according to rules. But in course of arguments the learned counsel for the Hotel Management disclosed that though according to rules beside other dues he was entitled to one month's pay in lieu of one month's notice the hotel management had shown their willingness to pay him three months' pay which too was hot acceptable to the respondent.
6. The learned counsel for the respondent contended that he was not even paid the gratuity. In this connection reference may be made to proviso to clause (6) of Standing Order 12 of Standing Orders Ordinance, 1968. It clearly shows that where employer has established Provident Fund to which a workman is contributory and the contribution of the employer is not less than the contribution made by the workman, no gratuity shall be payable for the period during which Provident Fund had been in existence. It is not denied that the Scheme of Provident Fund was in existence in the appellant's Hotel and as such the respondent was entitled to payment of the Provident Found and not the gratuity. The learned counsel for the Hotel Management placed reliance on the Supreme Court decision reported as 1996 PLC 306 wherein the view taken was that award of gratuity in addition to Provident Fund Scheme was arbitrary. Another case of payment of gratuity relied upon by the said learned counsel is reported as 1984 PLC 33. The said learned counsel also took exception to several other demands made by the respondent in his grievance petition which were outside the ambit of section 25-A of I.R.O.
1969. On this objection I am inclined to agree with the reasoning of the learned Presiding Judge of the Labour Court which is as follows : "It is true that the reliefs such as increment, bonus and referring him to Medical Board are beyond the scope of section 25-A of I.R.O., 1969 but that will not affect the whole maintainability of the application of the applicant. The reliefs which are beyond the scope of section 25-A I.R.O., 1969 cannot be granted but these claims which fall within the purview of section 25-A of I.R.O., 1969 can still be granted and the whole petition cannot be held to be not maintainable".
' In view of above discussion I allow the appeal and set aside the Lower Court's order.