DECISION ' This appeal is directed against the decision, dated 28th October, 1999 of Labour Court No,5, Karachi, whereby the appellant's grievance petition was dismissed.
' The facts of the case briefly stated are as follows. The appellant Muhammad Nazir was a Cook in the Hotel Jabees, Karachi (respondents), when on 15th April, 1999 he received a telegram from his native place informing him that his wife had an attack of paralysis. He rushed to Abbotabad, his native place, leaving an application for 15 days leave but without waiting for its formal sanction. He was, therefore, charge-sheeted and charge-sheet/show-cause notice, dated 28-4-1999 sent to him was admittedly received by him. However, he failed to furnish any explanation to the notice.
Thereafter, 2 letters one, dated 14-5-1999 and another, dated 28-5-1999 were sent to him with regard to holding of domestic enquiry but the same were returned undelivered as he had refused to receive them. After completion of enquiry which was obviously held in his absence second showcuase notice, dated 10-6-1999 was sent to him by registered post. It was also served on him personally on his return to Karachi on his visit to the respondent Hotel. He submitted his- reply to the second show-cause notice. However, as a result of enquiry he was dismissed from service by order, dated 24-6-1999. Aggrieved by this order he served a grievance notice on the respondent Hotel. As he was neither allowed to resume duty nor any response was made to his grievance notice, he went to Labour Court by filing grievance petition.
2. The respondents submitted their reply contesting the grievance petition. The learned Labour Court framed 5 issues and ultimately dismissed the grievance petition. It would appear from the judgment of the learned lower Court that though reasonable opportunity was provided to the appellant yet he failed to avail the same as he led no evidence in support of his case.
3. Mr. Abduz Zubaid appearing for the appellant submitted his arguments whereas Mr. Muhammad Sadiq Rajput appeared for the respondent Hotel. The appellant's Representative Mr. Abduz Zubaid frankly admitted that the appellant had withdrawn his grievance notice. He is supported by the appellant's own endorsement on the grievance notice itself to the effect; I, Muhammad Nazir is unconditionally withdrawing my A grievance notice, dated 26th June, 1999". As provided in section 25-A of Industrial Relations Ordinance, 1969 giving of grievance notice is a condition precedent for starting litigation i,e, grievance petition in Labour Court. Consequent upon admitted withdrawal of grievance notice by the appellant, the mandatory condition for maintaining grievance petition in Labour Court has obviously disappeared and therefore, the learned counsel for the respondent has rightly argued that the said petition filed by the appellant could not be maintained. The further admission of the learned Representative of the appellant was that appellant received his dues to the extent of Rs,3,179, being the salary for 15 months as the full and final settlement. Here the question would arise if any more amount was due to the appellant from the respondent. The learned Representative for appellant did not state in the course of his argument if the appellant owed more amount from the respondent than what he had actually received nor such objection was made by the appellant himself either verbally or in any document produced by him. In absence of any such evidence the amount actually received by the appellant would have to be regarded as the only dues legally claimable by him from the respondents. This also finds support from the fact that in the first instance he was given a cross cheque for the said amount but on his own request it was converted into cash cheque. Additionally Clearance Certificate at page 37 of the Lower Court's R&P also states that the appellant was paid all his dues as full and final settlement and nothing was left to be claimed or received by him from the respondent Hotel.
4. The next point raised by the learned Representative of the appellant in course of his argument was that the appellant had withdrawn the grievance notice on the undertaking given by the Hotel management that punishment of dismissal awarded to the appellant would be converted into that of simple termination of services. But there is no such reference either in the endorsement of withdrawal of grievance notice made by the appellant on the said notice appearing at pages 65 and 67 of the lower Court's record nor in the separate application made by him for withdrawal of that notice appearing at page 35 of the lower Court's record. Had any such undertaking been given by the Hotel Management the appellant would have surely made a mention of that undertaking in the 2 aforesaid documents and furthermore he would have not received the amount due to him until after implementation of the undertaking by the Hotel Management. This is clearly afterthought.
5. Even if it may be assumed that such undertaking was given by the Hotel Management they could not be legally permitted to fulfil such undertaking. In this connection reference may be made to Standing Order 15 of Standing Orders Ordinance, 1968 relating to punishments. Termination of service simpliciter as punishment does not figure in the list of punishments given in the aforesaid Standing Order, in case of misconduct. This finds further support from the precedent case of the Supreme Court reported as 1980 PLC 981 wherein it was held that termination of service not being a punishment for misconduct could not be substituted for dismissal.
6. The learned Representative's further objection that appellant was not provided reasonable opportunity in Labour Court for producing his evidence is absolutely without force, in view of the discussion hereinabove which is based on documentary evidence no further evidence would have improved the appellant's case. Even otherwise there is ample material on record to negative the learned Representative's objection. The case Diary of lower Court clearly shows that the case was adjourned twice for allowing the appellant to produce his affidavit-in-evidence but he failed to do so. Again after the receipt of the orders from the Labour Appellate Tribunal that instead of affidavit- in-evidence oral evidence be recorded by the Court, though the appellant was present on the date of hearing and he was required to give oral evidence, yet he refused to do so on the plea that he could not do it in absence of his Representative. The Court on his request waited sufficiently for his Representative but the latter did not turn up. The Court was, therefore, justified in rejecting his application for adjournment.
7. The authorities cited by the learned Representative of the appellant having no bearing on the issues involved and are patently extraneous and therefore, of no assistance to the appellant.
' For the foregoing reasons learned Labour Court was fully justified in dismissing the appellant's petition. Consequently there being no force in the appeal, it is dismissed.