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Constitutional Petition No. S‑72 of 1979, decided on 3rd May, 1980.

‑‑ S. 25‑A‑‑Grievance notice‑Has to be given by workmen/workers themselves or shop steward or Collective Bargaining Agent.

Civil Appeal No. K‑48 of 1978 (unreported) ref.

‑‑ O. VI, rr. 6 & 11‑Pleadings‑Pleas of fact as well as law not specifically raised before Labour Court‑Omission to deal with same by Labour Court‑High Court, held, would not interfere with order made by Labour Court moreso when at least latter plea prima facie curable.

‑‑‑ Art. 199‑Writ petition‑Impugned order‑Interlocutory‑Pleas of fact as well as law, held, cannot be allowed to be raised for first time in constitutional petition‑Petitioner, further held, can raise such pleas when case heard on merits.

Khurshid Anwar Shaikh for Petitioner.

Respondent (absent).

Date of hearing: 3rd May, 1980.

The facts giving rise to this petition are that respondents Nos. 2‑6 filed an application under section 25‑A of the Industrial Relations Ordinance challeng ing their alleged dismissal from service. On behalf of the petitioner employer preliminary legal objections were taken in these words:‑

(1) That the above-named applicants had also filed an application dated 28th January, 1979, under section 25‑A of Industrial Relations Ordi nance, 1969, for the same cause of action, which was summarily dismissed by this honourable Court vide order dated 7th February, 1979. Hence the applicants are now barred from filing another application for the same cause of action under section 25‑A(10) of Industrial Relations Ordinance, 1969, as the principle of res judicata can be safely applied in this matter.

(ii) That the applicants have also failed to comply with the mandatory provision as provided under section 25‑A(1) of Industrial Relations Ordinance, 1969.

(iii) That since the applicants have already stated in their earlier application dated 28‑4‑1979 that the cause of action has arisen to them on 8th August, 1978, hence they cannot be allowed to change their pleadings when their application has been dismissed by this hon'ble Court and as such the application filed by the applicants becomes hopelessly time barred.

(iv) That even otherwise the aforesaid Application No. 16/79 under section 25‑A(10) of Industrial Relations Ordinance, 1969, has not been properly presented before this honourable Court and as such the same is legally not maintainable under the law.

2. By the impugned order the Labour Court held that the preliminary objections were without force.

3. Mr. Khursheed Anwar, the learned counsel for the petitioner pointed out that as four objections were taken by the petitioner but the learned Labour Court has confined its attention to only two objections, namely, that the application was not time‑barred and hit by principle of res judicata and the remaining two objections relating to the failure of respondents workmen to comply with the mandatory provision of section 25‑A and that application was not presented properly, were not even mentioned much less considered. As to the application having not been properly presented Mr. Khursheed Anwar alleged that the application was not signed by all the applicants. As to the failure to comply with mandatory provisions of section 25‑A of the Industrial Relations Ordinance, 1969, the learned counsel invited my attention to the grievance notice which was signed by respondent Mian Gul for himself and for his four companions. According to the learned counsel the settled law is that the grievance notice according to section 25‑A had to be given by the workmen/workers themselves or by shop steward or by the Collective Bargaining Agent (unreported judgment of the Supreme Court of Pakistan in Civil Appeal No: K‑48 of 1978).

4. The question, however, is not that contentions raised have merits but whether such pleas were taken by the petitioner. The two pleas, it may be noticed are both of fact as well as law and to my mind cannot said to be covered by a wide assertion that the mandatory provision of section 25‑A was not complied with or that the application under sec tion 25‑A was not properly presented. It would further appear from the impugned order that no such pleas of fact and law were raised before the Labour Court and if under the circumstances the Labour Court omitted to deal with the same this Court will not ordinarily interfere with the order made and moreso when at least the latter plea is prima facie curable. I am inclined to take the view that each pleas should not, in principle, allowed to be raised for the first time in a Constitutional Petition. Moreover, the impugned order does not finally dispose of the dispute between the parties and it will still be open to the petitioner to raise the said pleas when the application under section 25‑A comes to be heard on merits.

5. This petition is, therefore, dismissed but in the circumstances there wilt be no order as to costs.

Petition dismissed.

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