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Appeal No. HYD-433 of 1981. decided on 21st April, 1982.

(a) Industrial Relations Ordinance (XXIII of 1969)---

--- Ss. 25-A & 38-Grievance notice-Essentially to be served upon employer as defined in Ordinance-Notice served upon Site Engineer-No evidence on record that Site Engineer was entrusted by owner of establishment with management of affairs of establishment-Labour Court without such evidence assuming that notice being valid-Order of Labour Court in circumstances, set aside by Appellate Tribunal and case remanded for decision afresh after recording evidence on point.

(b)

West Pakistan

-- S. 1(4) and S. Os. 12(5) & 15 -Termination of service allegedly illegal-Number of employees in establishment admittedly less than 50-Neither SO. 12 (5) nor S. O. 1j applicable-Contention that establishment not a separate unit but part of main establishment having more than 50 employees-Labour Court without any evidence assuming that Ordinance applicable- Order of Labour Court, in circumstances, set aside and case remanded for decision afresh after recording evidence on point whether concerned establishment could be considered as a separate establishment from other establishments of appellant' owner Industrial Relations Ordinance (XXIII of 1969), Ss. 25-A & 37.

A1-8asan Silk Mills Ltd. v. The Presiding officer, Sind Labour Court P L D 1981 S C 39 rel.

M. L. Shahani for Appellants.

Wasiullah Qureshi for Respondent.

Date of hearing : 21st April, 1982.

DECISION

This appeal by the management is directed against a decision of the learned Sixth Labour Court, Hyderabad, given on 22nd July, 1981, on the grievance petition of the respondent workman, directing the manage ment to re-instate him in service with full back benefits.

2. The admitted facts of 'the case are that the respondent was appointed as time-keeper with effect from let August, 1978 and was posted at the appellant's project with the Pakistan Steel Mills at Pipri. On completion of the said project, the respondent was transferred in June, 1980, to the appellant's project with the Fouji Sugar Mills at Tando Muhammad Khan. At the latter project the respondent was granted leave from 7th August, 1980 upto 16th August, 1980. According to the respondent, he fell ill at Karachi during the period of his sanctioned leave and accordingly submitted application for extension of leave upto 7th September, 1980 to the Head Office which granted the leave requested. However, according to the appellants, no such leave application was either received from the respondent nor was any extension of leave granted to him. It is further the case of the respondent that on 8th September, 1980, he reported to the Site Engineer of the appellants at Tando Muhammad Khan but as he was not allowed to resume his duties by the Site Engineer he sent grievance notices to Mr. M. S. Butt, owner of the appellant firm and also the Site Engineer. As the respondent obtained no redress and even his earlier complaint to the Joint Director, Labour, Welfare, proved unfruitful he filed a grievance petition against the appellant before the learned Labour Court on 29th December, 1980.

3. The learned Labour Court, in its impugned decision, has held that service of the grievance notice on the Site Engineer has been estab lished. This finding is based on the postal acknowledgement receipt which bears the postal stamp of 29th November, 1980. The learned Labour Court has assumed either that the Site Engineer was the employer or that the service on the Site Engineer should be deemed to be service on the employer though no express finding to that effect has been given. Since service of notice is required to be given under section 25-A, 1. R. O., it is the employer as defined in the-1said Ordinance upon whom the notice is required to be served. It is, therefore, to be established that the notice was duly served either upon the owner of the establishment or alternatively that the Site Engineer was entrusted by the owner with the management of the affairs of the establishment at Tando Muhammad Khan and thus was the employer. Mr. Wasiullah Qureshi, the learned counsel) for the respondent, sought to argue that the grievance notice was no served upon the Site Engineer as such but was sent to the appellant through the Site Engineer. I am unable to find any substance in his conten tion as the postal acknowledgement gives the address of the addressee as "Muhammad Anwar, Site Engineer, Boiler Engineering Services c/o Fouji Sugar Mills, Tando Muhammad Khan". It, thus, seems clear that the grievance notice was served on the Site Engineer and not upon the owner through the Site Engineer.

4. The learned Labour Court has based its decision on the view taken by it that the services of the respondent could not have been validly terminated by reason of its failure to report for duty on the expiry of his initial period of leave except by following the procedure prescribed in Standing Order 15. It has, however, been admitted by the respondent) himself in this evidence before the learned Labour Court that the total number of employees of the appellant in the Tando Muhammad project is 45. If the Tando Muhammad Khan establishment of the appellant is considered to be a separate establishment from the other establishment of the appellant, neither clause (5) of Standing Order 12 nor Standing Order 15 would apply to the said establishment as ruled by their Lordships of the Supreme Court in the case of Al-Hasan Silk Mills Ltd. v. The Presiding Officer, Sind Labour Court (PLD1981SC39). It was held by their Lordships in that case that Standing Order 12(5) was not applicable in cage of termination of services of a workman for misconduct in an establishment employing less than fifty workmen. The question whether the Tando Muhammad Khan establishment of the appellant is a separate establishment assumes importance in view of the objection of the appel lants to the Labour Court at, Hyderabad taking cognisance of the case. It was contended by Mr. M. L. Shahani, the learned counsel for the appel lants, that as the respondent was admittedly appointed at Karachi and the establishment of the appellant is an unified one though having branches at different places where it is awarded any contract or work, only the Labour Court having jurisdiction over the Head Office of the appellant, is entitled to entertain a grievance petition against the appellants. I do not consider it appropriate to give any finding on this issue in view of the order which I propose to make.

5. As the issues which fall to be considered in the instant case require the recording of evidence and cannot be adequately dealt without the evidence on record, I would set aside the decision of the learned Labour Court and would remand the case to it for a fresh finding, including the findings on the two issues stated above, firstly, whether the Site Engineer of Tando Muhammad Khan is deemed to be the employer of the respon dent for the purposes of the 1. R. O. or alternatively the service on him C is deemed to be service on the employer, and secondly, whether the Tando Muhammad Khan establishment can be considered t9 be a separate establishment of the appellants from their other establishment.

Case remanded.

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