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Appeal No.KAR‑165 of 1983, decided 5th June, 1984.

‑‑‑Ss.1(3), 25‑A, 36 & 38(3)‑‑Grievance petition‑‑Adjudication of‑ Practice and procedure‑‑Mixed question of law and facts‑‑To be proved and decided on basis of positive evidence‑‑Petition resisted on grounds (i) respondent establishment was "service" connected with or incidental to Armed Forces, (ii) Grievance notice was illegal and improper and (iii) grievance petition was time‑barred‑‑All contentions involving mixed questions of law and facts‑‑Respondent, held, had to prove same by positive evidence‑‑Labour Court on basis of photo copies of some documents without being admitted by parties and without any legal evidence accepting objections and dismissing grievance petition‑‑Order of Labour Court, in circumstances, held, not legally sustainable hence same set aside by Appellate Tribunal remanding case and transferring it to another Labour Court for re-decision after opportunity of evidence to parties.

Khalid Javed for Appellant.

Muhammad Naseem for Respondent.

Date of hearing: 7th December, 1983.

This appeal is directed against the order, dated 7‑4‑1983, passed by the Sind Labour Court No.V, Karachi; dismissing the appellant's application filed under section 25‑A, I.R.O., 1969 .

2. The brief facts leading up to the appeal are that the appellant was an employee of the respondent‑Company. He was turned out of the factory by the Factory Manager on or about 2‑5‑1982, while he was on his duty. The appellant sent a legal notice with the result that he was called back to join his duties in the Head Office. Subsequently, the appellant was served with a show‑cause notice for an un-authorised absence from duty. An Enquiry Officer was appointed and a domestic enquiry was held but the appellant wanted to get the enquiry officer, Mr. Khalid Sheikh changed on account of his partial attitude. It appears that enquiry was still pending, when Factory Manager finally dragged out the appellant from the factory premises. He threatened him to sign the resignation but he could not succeed. The appellant served a grievance notice on the respondent and his grievance having not been redressed, he filed an application under section 25‑A, I..R.O., 1969 for his re‑instatement and back benefits.

3. The respondents appeared but filed no written reply. They filed legal objections to the effect that the respondent‑establishment, was a 'service' connected with or incidental to the Armed Forces .of Pakistan and the jurisdiction of the Labour Court was ousted, that the grievance application was barred by limitation and that the grievance notice served on the respondents was illegal and improper. The appellant had filed his affidavit in evidence and the case was also adjourned for his cross -examination but the respondent appeared and insisted that the legal objections be disposed of first. The learned Labour Court thereafter proceeded to hear the legal objections and the learned Advocates for the parties argued the same. The learned Labour Court upheld the contentions raised on behalf of the respondents and dismissed the application vide the impugned order, dated 7‑4‑1983.

4. I have perused the relevant, material available on the record and have also heard the learned counsel for the parties, Mr. Khalid Javed for the appellant and Mr. Muhammad Naseem for the respondents. The only issues that arise for determination and disposal of this appeal are firstly; whether the respondent‑establishment is the 'service' connected with or incidental to the Armed Forces of Pakistan; secondly, as to whether the application under section 25‑A, I.R.O., 1969, is barred by limitation and thirdly, the grievance notice itself is illegal or improper. On the face of the material available on the record, these issues are mixed questions of law and fact. The respondents have to prove by positive evidence that the Labour Court's jurisdiction is ousted in view of the provisions of section 1(3)(a), I.R.O., 1969, they being the 'service' connected with or incidental to the Armed Forces of Pakistan. They have also to prove on the basis of the positive evidence that the grievance application is barred by limitation and that the grievance notice is also illegal and improper. But, I find that no evidence was recorded, in the case at all. What is available on the record of the learned, Labour Court, is that the application under section 25‑A, n I.R.O., 1969, is accompanied by photostat copies of a number of documents. I also find that the legal objections filed on behalf of the respondents are also accompanied by the Memorandum and Articles of Association of the respondent‑establishment and the other documents viz., photostat copies of the certificates and a letter. I find that at an earlier stage the appellant filed an affidavit in evidence and he was to be cross‑examined but in the meantime the learned Labour Court permitted that the legal objections be heard first. There is no evidence on the record in support or otherwise of the legal objections which give rise to mixed questions of law and fact. The appellant was not put in the witness‑box for cross‑examination on his affidavit in evidence by the respondent, whereas the respondents filed no affidavit in evidence at all. The photostat copies of the documents unless admitted by the parties are not admissible in evidence. What I find that no legal evidence has been recorded in the proceedings and what I further find that the learned Presiding Officer of the Labour Court has not at all applied his mind to the case. I am, therefore, clearly of the view that the impugned order passed by the Labour Court in the circumstances, cannot be legally sustained.

5. The result is that the impugned order is set aside and the case is remanded with the direction that the parties shall be allowed an opportunity to examine appropriate evidence in the case before it is disposed of. The appeal is allowed accordingly. The application under section 25‑A, I.R.O., 1969, is withdrawn from the Vth Labour Court, Karachi and is transferred to Labour Court No.III at Karachi for disposal according to law.

M. Y. M.

Appeal allowed. Case remanded.

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