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Appeal No. KAR‑612 of 1980, heard on 6th October, 1980.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑

‑‑‑S. O. 12(3) read with Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 37‑‑Grievance against termination of service violative of S.O. 12(3)‑Grievance notice to be served in manner prescribed by S. 25‑A of Industrial Relations Ordinance, 1969‑Contention that impugned order was passed by person not authorised to do so‑Point neither raised in grievance notice nor in grievance petition but raised for first at appeal stage‑Mixed question of law and fact depending upon evidence‑Not allowed at appellate stage.

Muhammad Rafiq v. Additional Commissioner P L D 1966 Kar. 434 ref.

Junaid Farooqi for Appellant.

Date of hearing : 6th October, 1980.

The appellant, who was employed in the respondent‑Company as a Strip‑packer, was dismissed from service with effect from 31st October 1978, on the charge of unauthorisedly remaining absent from his duties, without leave, with effect from 21st August 1978. The appellant chal lenged his dismissal order before the learned Labour Court. In his grievance petition, the appellant alleged that his dismissal orders were in consequence of the animosity of the Management which he had earned due to his trade union activities. His case is that he went on authorized leave from 18th June 1978, to his native place in Peshawar District, where he fell seriously ill, and accordingly, he got his leave extended with effect from 6th August 1978, and thereafter, sent a subsequent applica tion, dated 10th September 1978, for extension of leave from 10th September 1978 to 24th September 1978, supported by a medical certi ficate, but he was charge‑sheeted by the Management and ultimately dis missed from service after a domestic enquiry, which was neither fair nor impartial and which in fact was conducted by a prejudiced Enquiry Officer. The case of the respondent company, on the other hand, is that in spite of the fact that the appellant had only a week's leave to his credit, he was granted 49 days leave with effect from 18th June 1978 and this leave was further extended upon the application, dated 5th August 1978, of the appellant upto 20th August 1978, but since the appellant failed to report for duty upon the expiry of his extended leave, he was charge‑sheeted and on the basis of the domestic enquiry held by Mr. Tanvir Ahmad, Assistant Executive and Personnel Officer, he was dismissed from service.

The learned Labour Court has taken the view that the appellant was unauthorizedly absent from his duties, without leave, with effect from 21st August 1978, and that the domestic enquiry against him was conduct ed fairly and impartially. It has repelled the contentions made on be half of the appellant that the dismissal orders of the appellant are in valid as they have not been issued by the employer and that the Enquiry Officer was prejudiced against the appellant.

3. Mr. Junaid Farooqi, the learned counsel for the appellant, has canvassed before me the same points which were raised before the learn ed Labour Court, namely, that the dismissal orders of the appellant are invalid as they were not issued by his employer, and that further the Enquiry Officer, Mr. Tanvir Ahmad, was prejudiced against all workmen' for in every enquiry conducted by him, he has held the workman guilty of misconduct and liable to be dismissed. Now as regards the first con tention of Mr. Junaid Farooqi, it may be pointed out that the same was neither raised in the grievance, notice nor in the grievance petition. Section 25‑A, I.R.O., makes the filing of a grievance petition by an aggrieved worker contingent upon his first serving a notice upon the employer stating his grievance. Since the main grievance of the appellant is that his dismissal orders were not issued by his employer but by an incompetent authority, the appellant was required to brings this grievance to the notice of the employer before filing his grievance petition, so as to give an opportunity to the employer to redress his grievance. This, however, was admittedly not done. Mr. Farooqi, however, sought to argue that the failure on the part of the appellant to give notice to the respondent‑Company of the above grimace makes no material difference and does not make his grievance petition non‑maintainable. His first line of argument in support of his proposition was that the appellant's grievance petition in fact was not filed under section 25‑A, I.R.O., but under clause (3) of Standing Order 12. It may, however, pointed out that the said clause provides that an aggrieved worker take action in accordance with the provisions of section 25‑A, and thereupon the provisions of the said section shall apply as they to the redress of an individual grievance. As such, a worker against the termination of his services, by virtue of the of clause (3) of Standing Order 12, is entitled to take action accordance with section 25‑A, I. R. O., i.e. he is required to a grievance petition within the prescribed period after serving upon employer the requisite grievance notice.

4. It was next argued by Mr. Junaid Farooqi that' the issue of the dismissal orders being illegal on the ground of not having been issued by or with the approval of the employer, is a legal one, and, therefore, can be raised at any time. In support of his contention, he sought to place reliance on the decision in the case of Mohammad Rafiq v. Additional Commissioner (P L D 1960 Kar. 434). That decision is of no assistance to him. The legal issue raised in that case was whether the vote of an elector could be held to be vitiated on the ground of irregularity in the ballot paper arising an omission from on the part of the election official. It was observed by Anwarul Haq, J., as he then was, delivering judgment on behalf of the Division Bench, as follows :‑

"The authorities relied upon by Mr. Muhammad Hayat Junejo do lend support to the general proposition canvassed by him, but it is to be observed that, in the first place, the observations of their Lordships of the Supreme Court refer directly to investigation into charges of corrupt practices; and, in the second case, they have also reference to the peculiar provisions of the statutory instru ments by which the election petitions in question were governed. We consider that these observations cannot apply strictly to a question of law which, though not mentioned in the election peti tion, arises on the face of the record made available to the Election Tribunals, and is raised by the petitioner during the course of proceedings before the Tribunal. However, in the case of allega tions of corrupt practices, evidence has to be led by the parties, and therefore, a respondent may be led by the parties, and there fore, a respondent may be seriously prejudiced if the Tribunal proceeds to enquire into all allegations not included in the election petition or the particulars accompanying it. These considerations do not, however, arise when the additional question raised is simply one of law with reference to facts patent on the record."

5. In the instant case, the issue whether the dismissal order not signed by the employer, is a mixed question of law and fact depending upon the evidence recorded in the case. It may be pointed out it is the case of the respondent company that Mr. Tariq, Amin, who signed the dismissal orders, had been duly authorized by the Managing Director to issue such orders. In fact the letter of authority to that effect was produced before the learned Labour Court. It has been held by this Tribunal in the case of Mohammad Irshad v. Gul Ahmad Textile Mills Ltd., decided on 5th May. 1980, following certain decisions of the Indian Supreme Court in this behalf, that where the employer is a com pany, it can delegate its powers, by a power of attorney or other suitable instruments, to an officer of the company, and such officer can validly exercise the powers delegated to him. As such. on either view of the matter, I find no force in this contention of Mr. Farooqi.

6. I also find no force in the other contention of Mr. Farooqi that the Enquiry Officer was prejudiced against the appellant. The sole ground upon which this contention is sought to be supported is that Mr. Tanvir Ahmad, the Enquiry Officer, in the other enquiries held by him against the workmen, had invariably held them guilty and, there fore, it is to be presumed that he was prejudiced against workers and was a tool of the Management. Mr. Tanvir Ahmad, however, in his evidence before the learned Labour Court denied that in every enquiry he had held the workers guilty and on the contrary asserted that in certain enquiries, where he found insufficient evidence against the workers, he had exonerated them. It may also be mentioned that the Enquiry Officer had taken pains to see that every opportunity of reasonable defence was given to the appellant and he had adjourned the enquiry in order to ensure the participation of the appellant. The Enquiry Officer thus cannot be considered to be a prejudiced person nor the enquiry proceedings held by him to be not independent enquiries.

7. For the reasons discussed by me above, I find no merit in this appeal and accordingly dismiss the same in limine.

Petition dismissed.

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