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Appeal No. HYD-4 of 1983, decided on 8th July, 1985.

---S. 25-A--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. 1(4)(c) S.O. 12(2)- Municipal Corporation being not run by or under authority of Government--Employees of such Corporation, held, were governed by Ordinance VI of 1968 and grievance petition by such employees was competent.

1981 P L C 879 and 1983 P L C 581 ref.

---S. 25--Grievance petition--Limitation of--Presiding Officer of Court on vacation--Court, held, is not closed during such vacations, urgent work being done according to vacation schedule--Appeal not filed within time was clearly time-barred in circumstances.

P L D 1983 Lah. 246 ref.

---S. 25-A--Grievance petition--Appeal--Memorandum of appeal signed by A0vocate but not signed by party--Failing to sign memo of appeal, by party, held, was lacuna and appeal was not competent in circumstances.

1982 P L C 1007 ref.

Hamid Hussain for Appellants. Wasiullah Qureshi for Respondent. Date of hearing: 16th April, 1985.

This appeal is preferred against the order, dated 29-11-1982, passed by the Presiding Officer, Labour Court No. VI at Hyderabad, who allowed the grievance petition of Syed Sabir All, an employee of the Municipal Corporation, Hyderabad.

2. The facts are that the respondent, Syed Sabir Ali was employed as Tappedar in the Municipal Corporation, when on 10-5-1981 his services were dispensed with and he was dismissed prior to his, dismissal, a charge-sheet, Exh. E-4, was issued to him and an Enquiy officer was appointed and the enquiry was held and subsequent to the enquiry he was dismissed. The respondent sent a grievance notice Exh. A-4 to the appellants and the same was rejected vide Exh. A-5.

3. The grievance application was opposed by the appellant corporation on the grounds that the provisions contained by the I.R.O. and the Standing Orders were not applicable to the Municipal Corporation, which was neither an industrial nor a commercial establishment.

4. The two learned counsel Mr. Hamid Hussain and Mr. Wasiullah Qureshi argued at length. Mr. Hamid Hussain contended that the Municipal Corporation of Hyderabad does not come within the ambit of Standing Orders Ordinance, 1968. According to an authority reported in 1981 P L C 879, the Standing Orders Ordinance is not applicable to the employees of the Municipal Corporation other than those who are employed in the establishments which might be properly considered as industrial and commercial establishment. Reference may be made to 1983 P L C 581, where Mr. Muhammad Abdul Ghafoor Khan Lodhi, Appellate Tribunal Punjab held as under:--

"Municipal Corporation though have statutory rules governing service matters of its employees, held, not run by and functioning under law. Not ousted from purview of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Petitioner having a guaranteed right under rules to be considered for promotion could not be ignored without consideration while promoting his juniors. Petitioner, in circumstances, held, rightly accepted by Labour Court."

5. The Municipal Corporation, Hyderabad, has statutory rules of service, conduct and discipline for its employees yet they cannot be ousted from the Standing Orders unless it is established that the said Corporation is carried on or run by under the authority of the Province of Government of Sind. The said corporation does not run, on or under the authority of the Government of Sind. It could, therefore, be held that these employees of the said Corporation who are employed in the establishment which might be properly considered as industrial or commercial establishment are governed by the Standing Orders Ordinance.

6. The sum and total outcome of the arguments of the two learned counsel is that Standing Orders Ordinance does apply to the Municipal Corporation of Hyderabad.

7. So far this appeal is concerned; Mr. Wasiullah Qureshi has referred me to P L D 1983 Lah. 246, where the point of limitation was involved. In the present case the very application for copy of the order was made on 2-1-1983, after one month of the passing of the impugned order, dated 29-11-1982. It is contended that one month was taken for vacation and the learned Presiding Officer was on vacation. Though the Judge may be on vacation, but the Court is not closed during the vacations and the urgent work is being done according to the vacation schedule. This was unfortunate that the pies was taken of vacation. In the authority quoted, the explanation furnished that the B delay was caused due to the fact that the matter was examined by different departments, it was held that Government department should be more vigilant and efficient. No premium can be put on their inefficiency. The appeal was held to be time-barred. In the instant case the appeal is clearly time-barred.

8. The next point agitated by Mr. Wasiullah Qureshi is that the memo of appeal was signed by the Advocate for the appellant and not by the party. It is a lacuna in the law and in this respect he has referred to an authority reported in 1982 P L C 1007. By a judgment Mr. Justice Ajmal Mian in a Division Bench decision, he held as follows:--

"However, it has been contended by Mr. Muhammad 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. 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 hereinabove, 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 article 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 the things.'

We are inclined to hold that section 25-A 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 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 specially 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 subsection (4) of section 25-A means a worker as defined in section 2 (xxvii) of the I.R.0, 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 adjudication 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 purpose mentioned in subsection (2) of section 36 of the I.R.O. In this view of the matter no exception can be taken to the conclusion arrived at by the two Courts on the above point."

9. This appeal fails on two points; the point of limitation and the lacuna for signing the memo. of appeal. The impugned order, therefore, is maintained and the appeal is dismissed. The back benefits deposited by the appellant corporation in Labour Court No. VI at Hyderabad, be paid to the respondent.

A.A.

Appeal dismissed.

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