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Constitutional Petition No. D-737 of 1981, decided on 4th May, 1982.

---S.25-A (4)-Petition to Labour Court through an attorney not competent. Question before the High Court was that a grievance petition before Labour Court under S. 25- A of Industial Relations Ordinance, 1969 filed through an attorney was not competent, Opposite contention was that there is a marked difference between the language employed in sub section (1) and subsection (4) of section 25-A inasmuch as in sub section (1) the word "himself" has been used, whereas in sub-section (4) the word "himself" has been omitted and further that in view of S. 36 (2) of the Ordinance a Labour Court is to be deemed a Civil Court and as such a petition could be filed by an attorney of workman.

Held: Section 25-A of the Industrial Relations Ordnance, 1969 is to be read as a whole. A plain reading of the above section as a whole indicates that the Legislature intended to specify the persons, who are competent either to serve a grievance notice or to file a proceeding under sec tion 25-A, namely, the worker himself or shop steward, or bargaining agent. If the intention of the Legislature would have been to permit a worker to file a grievance petition through an attorney, there was no need of specifying the agents specifically in section 25-A namely, a shop steward and a bargaining agent, who can file the petition under the aforesaid section. The word "worker" used in subsection (4) of section 25-A means a worker as defined in section 2 (xxviii) of the Ordinance which does not admit the inclusion of an attorney. The use of the word "or" in between the worker, shop steward and bargaining agent is clearly indicative of the fact that the Legislature has given option in alternatives to a worker, either to serve a grievance notice under sec tion 25-A of the I.R.O. and to file proceedings thereunder himself or through shop steward or through bargaining agent. The fact that under subsection (2) of section 36 of the I.R.O. a Labour Court is deemed to be a civil Court for the purpose of adjudicating upon an industrial dispute does not alter the above position. Section 36 is to be read with section 25-A. The former section does not provide anything contrary to the latter section. The requirements of section 25-A remained intact notwithstanding that a Labour Court is deemed to be a civil Court for the purposes mentioned in subsection (2) of section 36 of the Ordinance.

--S. 25-A-Grievance petition before Labour Court -Limitation-Period between date of filing departmental appeal and decision -thereon-To be excluded-Petitioner by filing a departmental appeal late cannot enlarge limitation period-Departmental appeal had been filed without loss of time-Proof-Burden upon petitioner.

Muhammad Ahmed for Petitioner.

Makhdoom Ali Khan for Respondents.

Dates of hearing: 3rd and 4th May, 1982.

.-This petition is directed against the orders dated 19th August, 1980 and 18th September, 1980 passed by the 1st Sind Labour Court and the Sind Labour Appellate Tribunal respectively, in Case No. 25/80 and Appeal No. Kar. 602/80.

The brief facts leading to the filing of the above petition are that the petitioner was employed with respondent No. 3 since 26th September, 1948. However, he was charge-sheeted for remaining absent for about 9 months without obtaining any leave. As a result of the inquiry held, he was dismissed from service by an order dated 28th September 1978. Against which the petitioner filed a departmental appeal, which was dismissed on 21st August, 1979. After that the petitioner served a grievance notice under section 25-A of the I R.O on or about 30th September, 1979 which was not (sic) responded to and, therefore, he filed a petition under the aforesaid section of the I.R.O. The above petition was dismissed by the learned 1st Sind Labour Court on the two grounds, namely, (i) that the petition was not competent as it was not filed either by the petitioner himself or the persons specified in section 25-A. (ii) That it was time-barred. The petitioner being aggrieved by the above order filed the aforsaid appal before the learned Sind Labour Appellate Tribunal, which was dismissed in limini by the aforesaid order dated 18th September, 1980. The petitioner being aggrieved by the above two orders has filed the present petition.

2. (a) In support of the above petition Mr. Mohammad Ahmed Khan, learned counsel for the petitioner has made .the following submissions:

(i) That both the Courts below erred in not noticing the distinction between the language employed in subsection (1) and sub section (4) of section 25-A of the I.R.O., 1969.

(ii) That the finding of the two Courts that the petition under section 25-A was time-barred is also not sustainable as admittedly the petitioner had filed the above petition after serving grievance notice upon receipt of the dismissal order of the appeal from the department.

(b) On the other hand Mr. Makhdoom Ali Khan, learned counsel for respondent No. 3 has contended as follows

(i) That section 25-A is to be read as a whole in conjunction with all the subsections and, therefore, the decision arrived at by the two Courts are in consonance with law.

(ii) That the burden of proof was on the petitioner to show that in fact he had filed the departmental appeal without loss of time, which the petitioner failed to discharge.

3. Reverting to the first contention of the learned counsel for the parties, it may be advantageous to quote hereinbelow subsections 1 to 4 of section'25-A of the IRO, which read as under

"Section 25-A.TRedre.rs of individual grievances.-(1) A worker may bring his grievance in respect of any right guaran teed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent, within three months of the day on which cause of such grievance arises:

(2) Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker.

(3) Where a worker brings his grievance to the notice of his employer through his shop steward or collective bargaining agent the employer shall, within seven days of grievance being brought to his notice, communicate his decision in writing to the shop steward or, as the case may be the collective bargaining agent.

(4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be, sub section (3), or if the worker is dissatisfied with such decision, the worker or shop steward may take the matter to his collective bargaining agent or the Labour Court, as the case may be, the collective bargaining agent may take the matter to the Labour Court and where the matter is taken to the Labour Court it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute:

Provided that a worker who desires to so take the matter to the Labour Court shall do so within a period of two months from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3), as the case may be "

It may be noticed that subsection (1) of section 25-A provides that a worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing either himself or through his shop steward or collective bargaining agent within 3 months of the date on which cause of such grievance arises. Whereas subsection (2) contemplates that the employer within 15 days of the receipt of the grievance notice shall communicate his decision in writing to the worker. Furthermore, subsection (3) provides that when a worker brings a grievance to the notice of his employer through his shop steward or collective bargaining agent, the employer shall within 7 days of grievance being brought to his notice communicate his decision to the shop steward or to the collective bargaining agent, as the case may be. Whereas subsection (4) lays down that if the employer fails to communi cate the decision within the period specified in subsection (2) or sub section (3), as the case may be, or if the worker is dissatisfied with such decision the worker or shop steward may take it to his collective bargain ing agent or the Labour Court, as the case may be, and that the collective bargaining agent may take it to the Labour Court. It further provides that the Labour Court shall give decision within 7 days from the date of the matter being brought before it. Proviso to subsection (4) further provides that a worker who desires to take the matter to the Labour Court shall do it within the period of 2 months from the date of com munication of the employers or as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3), as the case may be.

4. (a) Both the learned counsel have referred to the case of Syed Mohammad Hussain v. M/s. Pakistan Tobacco Co. Ltd. and another in which the Supreme Court while construing subsection (1) of section 25-A of the I.R.O., 1969 held that the word "himself" used in the above subsection clearly indicates that a worker has to serve a grievance notice himself or through his agents specified in 'the above subsection, namely, shop steward or trade union.

However, it has been contended by Mr. Mohammad Ahmed, learned counsel for the petitioner that there is a marked difference between the language employed in subsection (1) and subsection (4) of section 25-A inasmuch as in subsection (1) the word "himself" has been used, whereas in subsection (4) the word "himself" has been omitted. It has been further urged by him that since under section 36 (2) of the I.R.O. a Labour Court for the purpose of adjudicating and determining any industrial dispute is deemed to be a civil Court and has been vested with the power of a civil Court under the Civil Procedure Code, 1908 including the power relating to the enforcement of attendance of any person for examining him on oath or to compel the production of documents and material objects and to issue commission for examination of the witnesses or documents etc. and, therefore, a petition under section 25-A can be filed by an attorney of a worker. On the other hand, it has been vehemently urged by Mr. Makhdoom Ali Khan, as pointed out herein above, that section 25-A is to be read as a whole and all its subsections are to be read in conjunction. He has- also referred to the meaning of the word or', given in Black's Law Dictionary, 5th edition, which inter alia defines the above word as follows:

"A disjunctive particle used to express an alternative or to give a choice of one among two or more things. The word or' is to be used as a function word to indicate an alternative between different or unlike things."

(b) We are inclined to hold that section 25-A is to be read as whole. A plain reading of the above section as a whole indicates that th6 legislature intended to specify the persons, who are competent either to serve a grievance notice or to file a proceeding under section 25-A, namely the worker himself or shop steward, or bargaining agent. If the: intention of the legislature would have been to permit a worker to file a grievance petition through an attorney, there was no need of specifying the agents specifically in section 25-A namely, a shop steward and a bargaining agent, who can file the petition under the aforesaid section. We are also inclined to hold that the word "worker" used in sub section (4) of section 25-A means a worker as defined in section 2 (xxviii) of the I.R.O. which does not admit the inclusion of an attorney. The use of the word "or in between the worker, shop steward, and bargaining agent is clearly indicative of the fact that the Legislature has given option in alternatives to a worker, either to serve a grievance notice under section 25-A of the I.R.O. and to file proceedings thereunder himself or through shop steward or through bargaining agent. In our view, the fact that under subsection (2) of section 36 of the I.R.O. a Labour Court is deemed to be a civil Court for the purpose of adjudicat ing upon an industrial dispute does not alter the above position. Section 36 is to be read with section 25-A. The former section does no provide anything contrary to the latter section. The requirements of section 25-A remained intact notwithstanding that a Labour Court is deem d to be a civil Court for the purposes mentioned in subsection 2 of section 36 of the.1,,R.0. In this view of the matter no exception can be taken to the conclusion arrived at by the two Courts on the above point."

5. As regards the contention of the learned 'Counsel for the petitioner ' that both the Courts below erred in holding that the petition under sec tion 25-A was time-barred, it may be observed that Mr. Mohammad Ahmed has referred to Annexure B to the petition, Which is a copy of the order dated 20th August, 1979 informing the petitioner that the depart mental appeal was rejected. The above order indicates that the appeal submitted by the petitioner was un-dated. In our view the burden of proof was on the petitioner to show that he had filed the departmental appeal without loss of any time in order to keep the period of limitation intact as provided in section 25-A of the I.R.O. The petitioner ha neither before the Labour Court nor before the Sind Labour Appellate Tribunal made any averment as to the date when the appeal was presented. A worker by tiling a departmental appeal after 6/7 months from the date of his dismissal from service cannot enlarge the period of limi tation provided for in section 25-A. It may be observed that a worker is entitled to exclude the period, which may lapse between the date of filing of a departmental appeal and the date of decision thereupon. But in order to exclude the above period, he is obliged to show that there has not been any delay on leis part in submitting the appeal to the department. However, if the department delays the disposal of an appeal, in that event the worker cannot be penalised for the inaction or omission on the part of the department. The finding of the learned Sind Labour Court No. 1 on the question of limitation cannot, therefore, be said to be perverse or contrary to record. Furthermore, from the order passed by the Sind Labour Appellate Tribunal, it seems that this point was not pressed before the Tribunal as there is no reference to this point. Even otherwise, it does not make any difference as we are of the view that in exercise of Constitutional jurisdiction, we cannot interfere with the above finding of fact arrived at by a competent Court, which is neither perverse nor contrary to the record.

6. For the aforesaid reasons the petition is dismissed, but there will be no order as to costs.

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