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Appeal No. KAR/58 of 1983, decided on 28th November, 1983.

‑‑S. 25‑A (1)‑Grievance notice‑Representation to employer authori ties‑Rules of establishment providing right of appeal‑Aggrieved workman making mercy petition to highest authority (Chairman of Pakistan Steel Mills Corporation) with prayer to review impugned dismissal order and same passed on to relevant authorities for dispo sal as an appeal‑Record indicating that same ultimately treated as appeal and rejected‑Workman after waiting for considerable time of more than two months serving grievance notice with prayer that dis missal order be withdrawn with full back benefits‑Mercy petition, in circumstances, held, complied with all requirements of prescribed appeal and time spent in such appeal could not be ignored and limita tion for grievance petition before Labour Court would start from date of disposal of same‑Labour Court considering mercy petition as grie vance notice dismissing grievance petition as time‑barred reckoning limitation from date of such mercy petition‑Grievance petition found within limitation period reckoning limitation from date of grievance notice‑ Order of Labour Court, in circumstances, set aside by Appellate Tribunal and case remanded for decision on merits.

S. Javed Rafiq v. Chairman, Pakistan Steel Mills Corporation Appeal No. 1972‑73 of 1983 d1stinguished.

Allied Bank of Pakistan v. Punjab Labour Appellate Tribunal etc. 1980 P L C 421 ; National Bank of Pakistan v. Farooq Ahmed Memon, 1983 P L C 437; Gul1stan v. Sind Labour Appellate Tribunal, Karachi and 2 others 1982 P L C 1007 and Forbes and Forbes Compebell through its Management, Karachi and 3 others v. Habibur Rehman and 2 others 1982 S C M R 651 rel.

Ch. Rashid Ahmed for Appellant.

Kamal Mansur Alam for Respondent.

Date of hearing : 18th August, 1983.

This appeal is directed against the order, dated 2nd January, 1983 passed by the IVth Labour Court at Karachi, dismissing the grievance application filed by the appellant under section 25‑A, I. R. O., 1969 on the sole ground that it was barred by limitation.

2. The facts leading upto the appeal briefly stated are that the appel lant was working as Coke Pusher Operator in the respondent Corporation since 1974. It is alleged that he remained absent from duty for more than 10 days in the months of July and August, 1981. In a domestic enquiry, he was found guilty for misconduct and was dismissed from service, vide order, dated 4th February, 1982. He sent a mercy petition, dated 18th February, 1982 against the order of dismissal to the Chairman of the respondent Corporation. Subsequently, finding no response to the mercy petition from the respondent Corporation, he sent a grievance notice on 27th April, 1982. He received a reply to his grievance notice, dated 18th May, 1982, his grievance having not been redressed. He then filed a grievance application under section 25‑A, 1. R. O., 1969, against the respondent on 27th May, 1982. The respondent filed a reply statement challenging the grievance application on the grounds of limita tion as well as on merits. The learned Labour Court holding that the mercy petition, dated 18th February, 1982, was in fact a grievance notice, since it met with all the requirements of such notice within the meaning of section 25‑A, I. R. O., came to the conclusion that the grievance application filed on 27th May, 1982, was hopelessly time‑barred and without going into the merits of the application, dismissed it on that sole ground, vide impugn ed order, dated 20th January, 1983. Aggrieved by this order, the appellant has come in this appeal.

3. I have perused the material evidence available on the record and have also heard the learned counsel appearing on behalf of the parties, Mr. Choudhry Rasheed Ahmed for the appellant and Mr. Kamal Mansur Alam for the respondent Corporation. It is a common ground that in case the mercy petition, dated 18th February, 1982, is treated as an appeal within the Rules prescribed for disposal of such representations and appeals arising out of grievance of the employees of the Corporation, the grie vance application filed by the appellant would be within a period of limitation, otherwise in case it is treated as a grievance notice, the grie vance application under section 25‑A, 1. R. O., would be admittedly time barred. In that respect, Mr. Kamal Mansur Alam the learned counsel appearing on behalf of the respondent Corporation has drawn my attention to the decision of this Tribunal in an Appeal No. KAR‑73/83, in the case of S. Javed Rafiq v. Chairman, Pakistan Steel Mills Corporation, and has contended that the requirements for such a mercy petition to be treated as an appeal as already held by this Tribunal are, that the appeal should be provided under the Rules applicable to the workmen of the employer, secondly, that the appeal should be submitted within the prescribed time, and thirdly, that the appeal must be made to the competent appellate authority and in accordance with the provisions for appeal laid down under the Rules. He has further contended that in the case under report, since the last requirement was not met with the application was not treated as an appeal and the application under section 25‑A, I. R. O., was dis missed as time‑barred. I would find the circumstances in that respect in the instant case substantially different. There is no dispute that the right of appeal to the appellant was provided under the Rules applicable to the workmen of the employer, which rules admittedly have been produced by the officer of the respondent, namely, Aziz Hayat, Senior Assistant Admin1stration, in the respondent Corporation examined at the appellate stage. They are available at Exh. 1/3. There is also no dispute that no period is prescribed under these Rules for submitting such an appeal or representation. However, in the case under report, the application pur porting to be an appeal was submitted to the authority, lower to the authority who passed an order of penalty on the workman and, there fore, the Tribunal considering that the appeal could only lie to the authority higher to the one who passed the order of punishment or penalty, did not conform to the requirements of appeal and decided against the workman. In the instant case, the mercy petition, dated 18th February, 1982, was sent to the Chairman of the respondent Corporation, the highest authority and the top executive of the Corporation. The petition is captioned as "mercy petition" against dismissal order, whereas the subsequent grievance notice, dated 27th April, 1982, is headed as a grievance notice. What I find that the contents of the two are not exactly the same verbatim. In the mercy petition, dated 18th February, 1982, the prayer is to review the order of dismissal so as to allow a chance to the appellant to re‑enter in service of Pakistan Steel and prove his worth, whereas in the grievance notice, dated 27th April, 1982, the request is that the order of dismis sal be withdrawn with orders with full back benefits. What I further find that the Chairman of the respondent Corporation appears to have treated the mercy petition as an appeal and appears to have passed it on to the relevant authorities for disposal as an appeal. Managing Director, Admin1stration and Personnel, admittedly is the authority to deal with such appeals as provided by Schedule annexed to the prescribed appeal rules "the Pakistan Steel Mills Corporation Services Regulation, 1969" produced at Exh. I /3 in the case of present appellant. What is further produced by Mr. Aziz Hayat, Senior Assistant, Admin1stration, in the respondent Corporation is an order, dated 27th April, 1982, passed by the Director, Admin1stration and Personnel, vide, Exh. 1/4, rejecting the appeal on the record. It has been marked to the General Manager. Admin1stration and Personnel as the order itself would show. Mr. Aziz .Hayat further admits that the order Exh. 1/4, was seen by the General Manager, Admin1stration and Personnel and it hears his signature. It would, therefore, appear that the General Manager, Admin1stration and Personnel seems to have approved the order of the rejection of the appeal of the appellant in the official routine. Apart from it in paragraph 6 of the reply statement, filed on behalf of the respondent Corporation, it is admitted on behalf of the respondent Corporation that the appellant had sent his appeal on 18th February, 1982, to bring his grievance to the notice of the employer. It would, therefore, appear that for all intents and purposes the respondent Corporation entertained the mercy petition, dated 18th February, 1982, of the appellant as an appeal, dealt with it also as an appeal under the prescribed rules, and finally, rejected it as such. It was also submitted, to the authority not lower than the authority who passed the order of penalty or punishment on the appel lant, but it was submitted to the highest authority of the respondent Corporation. In the circumstances, in my view, it would comply with all the requirements of an appeal within the prescribed rules of such appeals applicable to the employees of the respondent Corporation and the time spent in such appeal cannot be ignored. The limitation would obviously start from the date of disposal of such appeal. Since the respondent Corporation entertained it as an appeal and dealt with it so, it cannot plead successfully that time spent in such appeal be ignored. Reliance in that respect has been placed on the decision of the Lahore High Court in the case of Allied Bank of Pakistan v. Punjab Labour Appellate Tribunal etc. (1). This Tribunal has also been of a cons1stent view that where a departmental appeal is provided by the rules applicable to an establishment and an aggrieved workman, prefers an appeal within the prescribed period, the limitation for the purposes of service of grie vance notice under subsection (1980 P L C 421) of section 25‑A, I. R. O., will run from the communication of the decision in appeal as the workman would not only be aggrieved by the original order but also the order in appeal which con firms the same. Reliance in that respect has been placed amongst others on the decision reported in the case of National Bank of Pakistan v. Farooq Ahmed Memon (1983 P L C 437). This view was also held by the Division Bench of Sind High Court in the case of Gul1stan v. Sind Labour Appellate Tribunal Karachi and 2 others (1982 P L C 1007). The appellant in the instant case filed the mercy petition on 18th February, 1982, which was subsequently dealt with by the respondent Corporation as an appeal, only after about a fortnight after the order of his dismissal. It was rejected by the respondent Cor poration on 24th July, 1982, vide Etch. 1/4 on the appellate record. The appellant having waited for a reasonable time and having failed to have B received any intimation about the disposal of his appeal, served the grie vance notice, dated 27th April, 1982, on the respondent and filed the application under section 25‑A, I. R. O., 1969, on 17th May, 1982 and it would be clearly within the period of limitation. The Supreme Court in the same context has expressed the same view in the case of Forbes and Forbes Campbell though its Management, Karachi and 3 others v. Nabibur Rehman and 2 others (1982 S C M R 651). The relevant observations which are applic able on all fours to the circumstances of the present case are as under :‑

"We are, however, inclined to agree with the High Court that the telegram sent by the respondent on, 18th February, 1979 to the officer higher than the Branch Manager, who terminated his services, was in the nature of request for intervention to the higher authorities to save him and was not the formal grievance notice, as contemplated by section 25‑A of the I. R. O. We consider that the provisions of Labour Laws should be construed liberally and as they have been enacted to benefit workers, they should be construed in a sense favourable to the interests of the employees and not used as a trap. Therefore, we are inclined to agree with the High Court that it was only the formal grievance notice sent by the respondent to the Branch Manager, who had terminated his services, which should in the circumstances of this case, be regarded as the formal grievance notice envisaged by the relevant law."

I would, therefore, find that the mercy petition, dated 18th February, 19821 complies with all the requirements of a departmental appeal with such prescribed rules and not of formal grievance notice as contemplated by the relevant law. Excluding the time spent in such appeal, the grievance applica tion filed by the appellant under section 25‑A, I. R. O., 1969, in the learned Labour Court was clearly within a period of limitation.

4. The result is that the impugned order is set aside, the appeal is allowed and the case is remanded to the learned Labour Court, for decision on merits.

A. E. Appeal allowed.

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