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Appeal No. KAR-203 of 1983, decided on 1st September, 1983.

-- Ss. 25-A 4), 36 (2) & 38 and Sind Industrial Relations Rules, 1973, r. 72 read with Civil Procedure Code (V of 1908), O. XLI, r. 27-Adjudication of grievance petition-Procedure-Labour Court has same powers as vested in Civil Court under Civil Proce dure Code, 1908 while adjudicating grievance petition-Labour Appellate Tribunal in hearing appeal against order of Labour Court to follow same procedure as followed by appellate Court in hearing first appeal under Civil Procedure Code, 1908 Production of evidence-Labour Court and Appellate Tribunal to adopt prescribed procedure and provisions of r. 27, O. XLI of Civil Procedure Code, 1908 applicable in hearing appeal by Appel late Tribunal-Tribunal not empowered to record evidence as a matter of privilege but can record additional evidence only within limited scope of r. 27, O. XLI of Civil Procedure Code, 1908 Recording of evidence admissible in law and to evaluate it-Prima rily function of Labour Court though rules of evidence not strictly applicable-Service of grievance notice in time disputed-Petitioner in support of his claim of service of valid notice produced photo copies of envelope and postal registration slip-Labour Court pointing out same as inadmissible relying upon same and observing that claim should not be defeated on basis of mere technicalities and further leaving for superior Court (Appellate Tribunal) to direct whether further evidence was necessary on point of service of grievance notice being a privilege of superior Court to take further evidence-Order of Labour Court, in circumstances, set aside and case remanded with direction to record proper evidence and decision afresh.

1982 P L C 105 and 1980 P L C 746 ref.

M. A. Hassan for Appellant.

Ch. Rasheed Ahmad for Respondent.

This appeal is directed against the order, dated 4th June, 1983, passed by the HIrd Sind Labour Court at Karachi directing re-instatement of the respondent with full back benefits.

2. The facts leading up to the appeal briefly stated are that the respondent was charge-sheeted for misconduct. He submitted his expla nation and the domestic enquiry was held against him. . On service of the second show-cause notice, he was ultimately found guilty of misconduct which resulted in the order of his dismissal from service. Aggrieved by the order, he allegedly served a grievance notice on the appellants and ultimately filed an application under section 25-A, I. R. O., 1969, in the I11rd Labour Court, Karachi, which passed the impugned order, dated 4th June, 1983. Aggrieved by this order, the appellant management has come up in this appeal.

3. I have heard Mr. M. A. Hassan. the ..learned representative for the appellant and Mr. Choudhry Rasheed Ahmed. the learned Advocate for the respondent. Mr. M. A. Hassan has raised two-fold contention ; firstly, that the respondent failed to bring his grievance in writing to the notice of the appellant within the stipulated time as laid down in the pro visions of section 25-A, I. R. O.. 1969, and, therefore, his grievance peti tion under section 25-A, I. R. O.. was not maintainable ; and secondly, that the enquiry held against the respondent resulting in his dismissal order from service is in confirmity with the provisions of Standing Order 15 of the Standing Orders Ordinance, 1968.

4. During the course of the arguments, Mr. M. A. Hassan mainly, contended that the grievance notice was not at all served upon the appel lant and that if at all, the service of the alleged grievance notice would be barred by limitation as provided under section 25-A, I. R. O., 1969. What I find that in view of the evidence available on the record, the respondent adduced photo-stat of all the original documents relevant to prove the service of the grievance notice, withholding the originals with himself for the reasons best known to him. In view of this position, Mr. M. A. Hassan has further contended that the photo-stats. produced by the res pondent are not admissible in evidence and, therefore, the Tribunal cannot take the same into consideration in this appeal, specially when this issue forms the very basis of the question of the maintainability of the application under section 25-A, 1. R. O. While going through the impugned order, I find that even the learned Labour Court in view of such evidence on the record has felt difficulty in disposing of this material issue. The relevant observations in the impugned order are as under :-

"Some weakness in the case of the applicant in respect of service of grievance notice was pointed out. I was referred to 1982 P L C February Part, Page 105, wherein it was viewed with disfavour as to why the applicant had chosen to file photo-stat copies of the do cuments and had not filed the original envelope or the postal re gistration slip. In the present case also the applicant had not pro duced the original grievance notice, the original postal envelope and the original registration slip. It was held by the learned Labour Appellate Tribunal that the failure on the part of the applicant to produce the original documents caused doubt upon the claim of the applicant. It was also argued that the postman who was said to have attempted to deliver the notice to the respondents was not examined as held in 1980 P L C 746. Though, it is not essential in every case to examine the postman, but in that particular case, his examination was considered necessary because there were obvious contradictions in the alleged dates of delivery and the alleged dates of despatch. which is not the situation in the present case. The view taken in 1980 P L C 746 was therefore, distinguishable Moreover, it as been held by the Hon. Tribunal in various cases that a worker is an illiterate person and is not conversant with technicalities and legalities. His case which is otherwise good should not be defeated on the basis of mere formal technicalities. However, I would better leave this point for the Superior Court to hold the service good or to direct whether . further evidence is necessary on the point. It is the privilege of the superior Court to take further evidence or remand the case back and give an opportunity to the worker to produce the original documents and to examine the postman."

5. What I find that sub-clause (2) of section 36, I. R. O., 1969, pro vides that for the purpose of adjudicating and determining any industrial A dispute, the Labour Court shall be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure 1908, including the powers of

(a) enforcing the attendance of any person and examining him on oath ;

(b) compelling the production of documents and material objects ; and

(c) issuing commissions for the examination of witnesses and docu ments.

Subsection (4) of section 25-A, I. R. O. provides that the matters in applications under section 25-A, shall be brought before the Labour Court as if such matters were in an industrial dispute. Subsection (2) of section 66. I. R. O., provides that the Provincial Government may, in consultation with the Federal Government, make rules for carrying out the purpose of the Ordinance. Rule 72 of Industrial Relations (Sind) Rules 1973, framed thereunder provides that in hearing an appeal against an award, Labour Appellate Tribunal shall follow the same procedure as is followed by an appellate Court in hearing the first appeal under the Code of Civil Procedure, 1908. Order XLI of Civil Procedure Code lays down the procedure to be followed in hearing the first appeals under the Code, and its rule 27, reads as follows :-

"27. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, but if :-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.

The Appellate Court may allow such evidence or document to be pro duced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admis sion."

6. It would be thus clear that the procedure to be adopted by the Labour Court as well as the Labour Appellate Tribunal in appeals is regu lated by the prescribed provisions of law and procedure. Therefore, it would not be correct to say that this Tribunal has the powers to record evidence as a matter of privilege. It has the powers to record only an additional evidence within 'the limited scope of the above-mentioned pro visions. It is primarily a function of a trial Court to record evidence which is admissible in law and evaluate it. though the rules of evidence may not be strictly applicable. The learned representative for the appellant has, therefore, very rightly objected to the photo-stats of the documents having been produced on behalf of the respondent in support of the contention which goes to the very root of the case, being an inadmissible evidence. confronted with this situation, the learned counsel appearing on behalf of both the parties have agreed that it is a fit case which should be remanded to the learned Labour Court. Accordingly, I set aside the impugned order, and remand the case to the Labour Court with a direction to record proper evidence allowing both the parties an opportunity to lead further evidence if they so choose and then dispose of the application under section 25-A, I. R. O. according to law.

7. The result is that the appeal is allowed accordingly.

A. E. Appeal allowed.

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