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1986 P L C 193

[Labour Appellate Tribunal Sind]

Present: Z. A. Channa, Appellate Tribunal

Messrs LIBERTY MILLS Ltd. and others

versus

MUHAMMAD ZAMAN and others

Appeals Nos. KAR-506, 507 of 1977: KAR-80 to 83, 94, 95, 106 to 108, 159, 189 and 357 of 1978, and KAR-246 of 1979, heard on 5th November, 1979.

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

---S. 25-A (1) to (4) & (6)(7) [added vide Industrial Relations (Amendment) Ordinance (XLVIII of 1972) and Industrial Relations (Amendment) Act (XXIX of 1973) and deleted vide Industrial Relations (Amendment) Ordinance (XI of 1977)]--Grievance procedure--Legislative history traced--Grievance petition against termination of service could only be filed within two months without service of grievance notice during period subsections (6) & (7) were on statute book and during such period subsection (6) and not subsections (1) to (4) governed filing of grievance petition--Grievance petition whether against termination of service or in respect of any right guaranteed to workman under any law, settlement or award has to be made in accordance with procedure provided in subsections (1) to (4) after deletion of subsection (6) from statute book.

Beecham (Pakistan) Ltd. v. IVth Labour Court 1978 Ir L C 375; Arif Hussain Shah v. The Operative Director Administration Electric Equipment Manufacturing Co. Ltd. P L D 1979 Lah. 603; Saleemsons v. IInd Sind Labour Court Karachi and another P L D 1973 Kar. 1; Abdul Sattar v. Vth Sind Labour Court 1979 P L C 297; P L D 1976 Lah. 1176 and Sethi Straw Board Mills Ltd. v. Punjab Labour Court No. 3 PLD 1977 Lah. 71 rel.

Beecham (Pak) Ltd. v. IVth Labour Court 1978 P L C 578; Muslim Commercial Bank Ltd. Gujranwala v. Muhammad Tayyab Khan 1977 P L C 607; P L D 1975 Kar. 719; P L D 1976 Kar. 264 and P L D 1977 Kar. 166 ref.

Karachi Development Authority v. Presiding Officer Sind Labour Court Karachi P L D 1975 Kar. 716; P L D 1975 Kar. 719; Sleemsons v. Itnd Sind Labour Court Karachi and another P L D 1973 Kar. 1; Hotel Intercontinental v. Vth Sind Labour Court P L D 1976 Kar. 301 and Karachi Shipyard and Engineering Works distinguished.

Abdul Sattar v. Vth Sind Labour Court 1979 P L D 297 ref.

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

---S. 25-A--Limitation Act (IX of 1908), S. 5--Explarwtion--Grievance petition--Limitation--Condonation of delay--Principles of condonation and due diligence discussed in cases of conflict of judicial decisions or difficulty in understanding regarding practice or decisions of Courts- Difference between procedure and period provided in subsection (6) and that in subsections (1) to (4) of Industrial Relations Ordinance, 1969--Merits condonation even without formal application for condonation.

P L D 1979 Kar. 297; A I R 1953 S C 419; A I R 1950 Assam 83; Arif Hussain Shah v. The Operative Director, Administration Electric Equipment Manufacturing Co. Ltd: 1979 P L C 389 and Jaivan Ditta Banarsi Das Kapur and another v. Rai Sahib Radha JCishan Kapur and another A I R 1944 Pesh. 74 rel'.

Messrs. International Laboratories Employees v. Sind Labour Appellate Tribunal 1976 P L C 38; Attaullah Malik v. Custodian of Evacuee Property P L D 1964 S C 236; Begum Nazir Abdul Hamid v. Pakistan P L D 1974 Lah. 7; 1974 S C M R 158; 1974 S C M R 393; PLD 1971 Lah. 332; P L D 1966 Lah. 319; P L D 1976 Kar. 811; P L D 1967 AJ & K 47; P L D 1955 Dacca 63; 1975 S C M R 304 and 1970 S C M R 558 ref.

(c) Industrial dispute---

--Domestic enquiry--Charges of wild notions stretching over a period of 7 years with allegations of different types not even mentioning dates or particular period when same alleged to have been committed--Despite vagueness as to time and large number of allegations accused required to submit explanation within 48 hours--Inference, in circumstances, drawn that management were anxious to speedily get rid of accused- Domestic enquiry, in circumstances, held, neither in accordance with law nor principles of natural justice and accused not given adequate opportunity of defence--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(4).

(d) Industrial dispute--

--- Domestic enquiry--Ex parte proceedings--Notice to accused- Essential--Accused not present and date of next hearing fixed in presence of representative of Trade Union--Accused in past invariably informed directly about dates of hearing and in ordinary course must have been available on premises of Establishment--Mere presence of representative of Trade Union, in circumstances, held, did not absolve Enquiry Officer from responsibility of intimating next date of hearing to accused and holding of ex parte proceedings not justified.

(e) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--

---S. 12(3)--Termination of service of permanent worker--Department of factory closed due to drying off of demand and consequent incurring of loss--Termination order in writing indicating detailed reasons, in circumstances, held, unexceptionable.

(f) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)

---S. 2(i) and S.O. 12(3)--Industrial Relations Ordinance (XXIII of 1969), S.25-A--Deputy Traffic Manager of Sind Road Transport Corporation--Not a "Worker" under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968--Not entitled to file grievance petition against termination of service.

(g) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--

---S. 1(4)(b) and S.O. 12(3)--Industrial Relations Ordinance (XXIII of 1969), S. 25-A--Commercial establishment--National Institute of Cardio vascular Diseases Karachi with objects to establish and run hospitals and carry on educational activities relating to heart diseases substantially relying upon grants-in-aid from Government though receiving fees for services rendered--Not a commercial establishment and its employees cannot invoke jurisdiction of Labour Court by grievance petition under S. 25-A of Industrial Relations Ordinance, 1969 against dismissal or termination of service.

Mushad Rao Dakh mukh v. Rangho Mali and another A I R 1927 Nag. 247 and Educations Uplift Fund Association of Seventh Day Arventists in Pakistan v. Vth Sind Labour Court P L D 1978 Kar. 556 rel.

Holy Family Hospital Association v. IIIrd Sind Labour Court PLD 1979 Kar. 529 distinguished.

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

---S.25-A--Grievance petition--Limitation--Date from which limitation period to be reckoned--To be excluded--Date of decision of employer on grievance notice--Not to be counted while calculating limitation period.

Liaquat National Hospital v. Government of Sind P L D 1977 Kar. 843 rel.

Appeal No. KAR-506 of 1977

Mahmood A. Ghani for Appellants.

Ali Amjad for Respondent.

Appeal No. KAR-507 of 1977

Mahmood A. Ghani for Appellants.

Mr. Naseer for Respondent.

Appeals Nos. KAR-80, 82 and 83 of 1978

Mahmood A. Ghani for Appellants.

Ali Amjad for Respondents.

Appeals Nos. KAR--94 and 95 of 1978 Ali Amjad for Appellant.

Ghulam Hassan for Respondents.'

Appeals Nos. KAR-106 to 108 of 1978

Ali Amjad for Appellants.

Masood Mirza for Respondents.

Appeal No. KAR-159 of 1978

F.M. Azad for Appellant.

S. Qamaruddin Hassan for Respondent:

Appeal No. KAR-189 of 1978

S. Qamarruddin Hassan for Appellant.

F.M. Azad for Respondent.

Appeal No. KAR-357 of 1978.

Appellant in person.

Sirajul Haque Qureshi for Respondents.

Appeal No. KAR-246 of 1979

Ali Amjad for Appellant.

Masood Mirza for Respondent.

Date of hearing: 5th November, 1979.

ORDER

These are fourteen appeals which have been heard together as they involve one or both of the following important legal issues:-

(i) whether a grievance application under section 25-A, Industrial Relations Ordinance, 1969, by a workman against his dismissal or other mode of termination of service is to be made in the manner provided by subsection (6) of section 25-A, Industrial Relations Ordinance, 1969, or subsections (1) to (4) of the said section; and

(ii) whether in view of the conflict of decisions on the above issue, condonation should be allowed where a party has not filed the grievance application within the period provided under the correct procedure applicable to such applications.

2. The fourteen appeals, which are being disposed of by this common order, may be broadly classified into two categories. In the first category fall the appeals in which this Tribunal, in earlier round of litigation, has already held that grievance applications against dismissal or other mode of termination of services are governed by subsection (6) of section 25-A and such applications must be filed within two months of the cause of action or grievance, but the Tribunal had remanded the cases to the learned Labour Courts for considering the question whether in view of the conflict of decisions the late filing of appeals be condoned and the Labour Courts have either condoned or refused to condone the delay. Appeals Nos. Kar. 507 of 1977, Kar. 506 of 1977., Kar. 80 of 1978, Kar. 159 of 1978, Kar. 189 of 1978, and Kar. 82 and 83 of 1978, belong to this category. In Appeals Nos. Kar. 507 of 1977, Kar. 516 of 1977, Kar. 82 of 1978, Kar. 83 of 1978 and Kar. 80 of 1978, condonation was allowed while in Appeals Nos. Kar. 759 of 1978 and Kar. 189 of 1978, which are cross-appeals, condonation was refused. In the second category fall those appeals which are against the orders of the learned Labour Courts refusing to condone the delay in filing the grievance applications within the period prescribed in subsection (6) of section 25-A, Industrial Relations Ordinance, 1969. In view of the decision of this Tribunal in the case of Beecham (Pakistan) Ltd. v. IVth Labour Court 1978 P L C 375, where it was held that a workman whose service has been terminated must approach the Court directly within two months of the grievance having arisen and that it is not necessary to adopt the procedure laid down in subsections (1) to (4) of section 25-A, Industrial Relations Ordinance, 1969. Unlike the appeals falling in the first category, wherein the impugned decisions were given on remand, the impugned decisions in these appeals were given at the original trial. Appeals Nos. Kar. 94 of 1979, Kar. 95 of 1979, Kar. 245 of 1979, Kar. 106 to 108 of 1978,' and Kar. 357 of 1978, fall in this category. Out of them no condonation application was filed in Appeals Nos. Kar. 246 of 1979 and Kar. 357 of 1978.

3. I have heard Mr. Mahmood A. Ghani, who appeared for the appellants in Appeals Nos. Kar. 507 of 1977, Kar. 506 of 1978, Kar. 159 of 1978, Kar. 82 of 1978 and Kar. 83 of 1978 and for the respondents in cross Appeal No. Kar. 189/78, Mr. Ali Amjad, who represented the appellants in Appeals No. Kar, 94 of 1978, Kar. 95 of 1978, Kar. 246 of 1979, Kar. 106 of 1978 to Kar. 108 of 1978 and the respondents in Appeals Nos. Kar. 506 of 1977, Kar. 82 of 1978 and Kar. 83 of 1978, Mr. Syed Qamaruddin Hassan for. the appellants in Appeal No. Kar. 159 of 1978 (cross-appeals), Mr. F.M. Azad, who-appeared for the appellant in Appeal No. Kar. 189 of 1978, Mr. Mazhar Ali Chohan, who appeared in person in Appeal No. Kar. 357 of 1978, Mr. Sirajul Haq Qureshi and Mr. Azmatullah, who appeared for the respondents in the said appeal, the respondent in person in Appeal No. Kar. 80 of 1978 and Mr. Masood Mirza who appeared for the respondent in Appeals Nos. Kar. 106 to 108 of 1978 and Kar. 246 of 1979. There was no appearance for the respondent in Appeal No. Kar. 507 of 1978.

4. In regard to the first legal issue, namely, whether grievance applications by workmen against termination of their employment have to be filed within the period prescribed in subsection (6) or subsections (1) to (4) of section 25-A, Industrial Relations Ordinance, 1969, Mr. Mahmood Ghani relied upon the decisions of this Tribunal in the cases of Nisar Ahmad v. Nizamuddin decided on 28-2-1977, Pakistan Machine Tools Factory Ltd. and others v. Mirza Muhammad Naeem and others decided on 10-9-1977 and Beechdm (Pak) Ltd. v. IVth Labour Court 1978 P L C 378. He also relied upon a decision of the Punjab Labour Appellate Tribunal in the case of Muslim Commercial Bank Ltd., Gujranwala v. Muhammad Tayyab Khan 1977 P L C 607, (5) the decision of the Lahhore High Court in the case of Arif Hussain Shah v. The Operative Director Administration Electric Equipment Manufacturing Co. Ltd. P L D 1979 Lah . 603 and a Division Bench decision of the Karachi High Court in the case of Messrs International Laboratories Employees v. Sind Labour Appellate Tribunal 1976 P L C 38.

5. On the second issue, namely, what are the principles for condoning- delay and whether condonation should have been allowed in the appeals in which he is appearing, Mr. Mahmood Ghani submitted that condonation under section 5 of the Limitation Act can only be allowed in cases where "sufficient cause" is shown by the parties concerned and this expression has been interpreted to mean 'circumstances beyond the control of the parties concerned'. In support of his contention he relied upon a decision of their Lordhips of the Supreme Court in the case of Attaullah Malik v. Custodian of Evacuee Property P L D 1964 S C 236. Mr. Mahmood Ghani further submitted that condonation is permissible only where a party in spite of due diligence is misled by the practice of the Court or conflict of decisions and not in, the case of negligence or want of knowledge of law. He contended that no one can be misled by a Single Bench ruling if there is in existence a Division Bench decision, holding a contrary view. He referred in this behalf to the Division Bench decision in the case of International Laboratories, which according to him has specifically held that grievance applications against termination of services are to be filed in accordance with the provision of subsection (6) of section 25-A. In support of his contention as to when a person exercising due diligence can be said to be misled by conflict of judicial decisions, he relied upon the decision of the Lahore High Court reported as Begum Nazir Abdul Hamid v. Pakistan P L D 197.4 Lah. 7. Mr. Mahmood Ghani finally submitted that even if the delay in filing the various grievance applications had been due to wrong advice tendered by the counsel or the representatives of the parties, then also there was .no valid ground for condonation of delay and in any case it was for the party concerned to explain each day's delay, which they have failed to do. In support of his contention he relied upon the decisions reported in 1974 SC 11 F 158 at 160; 1974 S C M R 393 394; P L D 1971 Lah. 332 at 338; PLu 1966 Lah. 319 at 324; P L D 1976 Kar. 811 at 816; P L D 1967 A J & K 47 at 49 and P L D 1955 Dacca 63 at 67. In submission regarding furnishing of explanation by the parties concerned for each day's delay Mr. Mahmood Ghani relied upon the decisions of their Lordships of the Supreme Court reported in 1975 S C M R 304 at 305 and 1970 S C M R 558 at page 562.

6. Mr. Ali Amjad, Advocate, who advanced arguments in support of the opposite view, invited my attention to the decision of the case of Karachi Development Authority v. Presiding Officer Sind Labour Court Karachi P L D 1975 Kar. 716, wherein it was held that it was incumbent upon a worker before filing a grievance application under section 25-A, Industrial Relations Ordinance, against the termination of his services to serve a grievance notice upon the employer, and failure on the part of the workman to serve such a notice disentitles a Labour Court to maintain such an application The learned counsel also relied upon the decisions reported in P L D 1975 Kar. 719; P L D 1976 Kar. 264; P L D 1977 Kar. 166; P L D 1979 Kar. 297 and the decision of this Tribunal in Appeal No. Kar. 298 of 1976, decided on 25-1-1977.

7. In regard to the question whether condonation should be allowed assuming that the correct legal position is that grievance applications against termination of services are to be made within the period prescribed in subsection (6) of section 25-A, Mr. Ali Ahmad submitted that there are two principles regulating condonation of delay under section 5 of the Limitation Act. The first principle, according to him, was whether there was difficulty in understanding or a reasonable doubt regarding the practice or the decisions of the Court and it is only in such cases that the rule of 'due diligence' would apply. According to him, the second principle is that in cases of conflict of decision, if a party followed either view, even if the view followed was ultimately found not to be correct, condonation should invariably be granted and the rule of due diligence would not apply. In support of these contentions the learned counsel relied upon a number of authorities from Pakistan and Indian jurisdiction and particularly the decisions, in the cases reported in A I R 1953 S C 419; A I R 1950 Assam 83 and PLD 1961 Kar. 317 at 322.

8. Mr. Masood Mirza, while mainly adopting the arguments of Mr. Mahmood Ghani, laid emphasis on the expression 'notwithstanding anything' contained in subsections (1) to (4) appearing in subsection (6) of section 25-A, which subsection has now been repealed by Ordinance IX of 1977. The learned counsel submitted that this clause clearly excluded the provisions of subsections (1) to (4) in case of grievance applications by workmen against termination of their employment and hence subsection (6) should be construed in the nature of a proviso to subsections (1) to (4). As to the effect of a non-obstante clause, he relied on the decision of the Lahore High Court in the case of Arif Hussain Shah to which I have already made reference.

9. Messrs Syed Qamaruddin Hassan, Humayun, Sirajul Haq Qureshi and Azmatullah Khan adopted the arguments of Mr. Mahmood Ghani in respect of the two legal issues involved.

10. Before examining the arguments of the learned counsel and representatives, I would like to point out that Appeal No. Kar. 95 of 1978 by appellant Iqbal Ahmad does not involve either of the two legal issues stated in the opening paragraph of this order and that this appeal, which clearly was filed in time, has been wrongly dismissed on the ground of delay. In that case the services of appellant Iqbal Ahmad were terminated by an order, dated 1-12-1976. He served a grievance notice upon his employer on 3-1-1977 and fired the grievance application under section 25-A, Industrial Relations Ordinance on 29-1-1977. Since he had not only served the grievance notice upon the employer within the period provided in subsection (1) of section 25-A, but also filed the grievance application within a period of two months from the cause of grievance, as provided in subsection (6) of section 25-A, his application was within time and maintainable whether subsections (1) to (4) are applicable or subsection (6) is applicable. As such, not only it was unnecessary for the appellant to file a condonation application, which he seems to have done under some misapprehension, but further, the order of the learned Labour Court in not only rejecting the condonation application but dismissing his grievance application on the ground that it was time-barred, was clearly misconceived and, therefore, the said order cannot be sustained.

11. In order to appreciate the different contentions raised by the learned counsel-representatives in respect of the two legal issues involved, it appears appropriate to briefly trace the history of legislation regarding the grievance procedure, as this history, in my humble opinion, will throw light upon the legislative intent. Originally the grievance procedure was provided in Standing Order 18. By Ordinance IX of 1972, the said Standing Order was repealed and the grievance procedure, in a modified form, was transferred to the Industrial Relations Ordinance to constitute its newly-enacted section 25-A. A grievance petition under the said section, however, could only be filed by a 'worker' as defined in section 2(xxviii) of the Industrial Relations Ordinance. As was pointed out by me in the case of Johnson & Johnson and others v. Zubair Ahmad and others, Appeals Nos. 214 of 1979 and 215 of 1978, the said definition excludes persons whose services had been terminated or who had been removed, retrenched, discharged or dismissed from service except such persons whose dismissal, discharge, retrenchment, lay-off or removal from employment was in connection with or as a consequence of an industrial dispute. The argument based on the provision in subsection (4) of section 25-A, that in dealing with a grievance application the Labour Court is required to give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute, therefore, every case of dismissal from service or termination of employment should be deemed to be a dismissal or termination in consequence of an industrial dispute or at least which has led to an industrial dispute was examined and the view taken by me was that this provision does not enlarge the definition of 'workman' in the Industrial Disputes Ordinance so as to include within its scope workmen whose services have been terminated otherwise than in the manner provided in the said, definition and that the said provision in subsection (4) should be construed as being applicable merely to the procedure of the Labour Court in deciding such applications. I would reiterate the view that I had taken in the above appeals and would further point out that the original subsection (4) provided that the Labour Court, before which a grievance application was filed, had to give its award within twenty days from the date of the matter being brought before it as if such matter were an industrial dispute. An award has been defined in the Industrial Dispute Ordinance as a determination by a Labour Court or an arbitrator or the Appellate Tribunal of an industrial dispute. Since the decision of the Labour Court was to be deemed to be an award, it was necessary to treat the grievance application as an application in an industrial dispute. Furthermore, under subsection (3) of section 38, Industrial Relations Ordinance, only awards of Labour Courts were appealable. If the decision of the Labour Court under section 25-A were not to be treated as an award such decision would be final and would not be subject to the appellate jurisdiction of this Tribunal. The legislative intent, however, was that decisions of, the Labour Courts in such important matters should not be final but be subject to the appellate jurisdiction of the Labour Appellate Tribunal and this legislative intent was made manifest by treating such decisions as awards in industrial disputes, which were appealable under subsection (3) of section 37. In my humble opinion, the reference to 'Industrial dispute' in subsection (4) of section 25-A must be construed in the above light and cannot be construed so as to enlarge the definition of 'worker', who alone is entitled to file a grievance application. No doubt, the word 'award' in subsection (4) was substituted by the word 'decision' by Ordinance XVIII of 1972 and further the period of twenty days within which the Labour Court was required to decide a grievance petition was reduced to seven days by Ordinance XLVIII of 1972, but the reference to 'industrial dispute' was allowed to remain, not for the purposes of treating every grievance application as having given rise to an industrial dispute or enlarging the definition of 'worker' but only for the purposes of the procedure to be adopted by the Labour Courts, while dealing with such applications. It may be pointed out that no separate procedure is laid down in the Industrial Relations Ordinance to be followed by Labour Courts while dealing with grievance applications under section 25-A, subsection (2) of section 36 specifies the powers of a Labour Court while adjudicating and determining an 'industrial dispute'. These powers cannot be exercised by a Labour Court while adjudicating upon a grievance application unless it were treated as an industrial dispute, as has been done by the provision in question in subsection (4) of section 25-A. No doubt this construction left out from the beneficial cover of section 25-A an important segment of workmen having a most material grievance, namely severance of relationship of employer and employee but this would appear to be the only reasonable construction which can be placed upon the provisions of the statute. Tote absence of a similar remedy to such workman as in the case of workman whose employment had not been terminated was soon realised and the legislature, on 27-5-1972, enacted Ordinance XVIII of 1972, by which existing Standing Order 12 was substituted by a new Standing Order, clause (3) whereof reads as follows: -

"(3) The service of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicity state the reason for the action taken in case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may bring his grievance to the notice of his employer in the manner laid down in section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969), and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."

12. It may be noticed that the above provision requires the service of a grievance notice upon the employer and consequently the procedure provided in subsections (1) to (4) of section 25-A. Industrial Relations Ordinance, was required to be followed, specially as subsection (6) had not by then been added to section 25-A. However, Ordinances XLVIII and LI of 1972 made important changes in this behalf both in the Standing Orders Ordinance as well as in the Industrial Relations Ordinance, 1969. The latter Ordinance did away with the reference to the grievance notice in clause (3) of Standing Order 12 while the latter Ordinance added subsection (6) to section 25-A, Industrial Relations Ordinance. The omission of reference to the grievance notice in clause (3) of Standing Order 12 was necessitated, in my humble opinion, by the addition of subsection (6) of section 25-A, which did not require the service of a grievance notice and specifically provided for filing directly in the concerned Labour Court grievance applications by workmen aggrieved by the termination of their employment. It may be noticed that the wording of subsection (6) of section 25-A, and clause (3) of Standing Order 12 in regard to the persons entitled to file grievance application is identical and the two provisions are complimentary to each other. By these changes in law, the legislature in my humble opinion, not only entitled workers aggrieved by termination of their services to adopt the grievance procedure, laid down in section 25-A, Industrial Relations Ordinance, but also manifested its intention that such aggrieved workers could only follow the procedure prescribed in the newly-added subsection (6). This intention, in my view is made clear not only by the deletion in clause (3) of Standing Order 12 the requirement of service of grievance notice upon the employer, but also by the non-obstinate clause with which subsections (6) of section 25-A begins. The statute is emphatic that notwithstanding anything contained in subsections (1) to (4), 'workers' aggrieved by termination of their employment may file grievance applications within two months of the cause of grievance. It is not likely that the legislature considered that the service of a grievance notice would be wholly superfluous and not only serve no useful purpose but would result in delay in giving redress to the workman, where the relationship of employer and employee had ceased to exist. It has been my experience that an employer who terminates the services of a workman cannot normally be persuaded by a grievance notice to re-employ the aggrieved workman. However, in cases where the relationship of employer and employee remains intact the grievance notice is an effective step towards redress of grievance on the part of the workman.

13. It may be pointed out at this stage that subsection (6) of section 25-A, as added by Ordinance XLVIII of 1972, contained an omission as well as an error. The omission was that whereas a new procedure was prescribed for filing of grievance applications by workmen aggrieved by the termination of their services the law did not specifically provide how the Labour Courts were to deal with such applications. This omission was rectified by Act XXIX of 1973, enacted on 9-2-1973, which added subsection (7) to section 25-A, providing that application filed under subsection (6) was to be dealt with by the Labour Court in the manner laid down in subsections (4) and (5). The error in the originally enacted subsection (6) was that it provided that grievance which had arisen after the promulgation of this Ordinance could be brought before the Labour Court under section 25-A. Since the expression "this Ordinance' referred to the Industrial Relation. Ordinance, 1969, it meant that grievances, which had arisen upto 30-I1-1969, when the said Ordinance was enacted, could be brought before the Labour Court. This error was rectified by Act XXIX of 1973, which replaced the expression 'this Ordinance' by the expression the 'Industrial Relations (Amendment) Ordinance, 1972', thereby permitting the making of applications only in respect of grievance which had arisen not earlier than two months prior to the promulgation of Ordinance IX of 1972, by which the individual grievance procedure was first incorporated in the Industrial Relations Ordinance. Reference may also be made to Act XXIII of 1973, which replaced Ordinance LI of 1972 by which reference to the grievance notice in clause (3) of Standing Order 12 was omitted Finally, I may refer to Ordinance IX of 1977 by which subsections (6) and (7) of section 25-A, as added by Act XXIX of 1973, were omitted. The position now, thus, is that a grievance application by a worker whether in respect of the termination of his services or any other right guaranteed to him under any law, settlement or award has to be made in accordance with the procedure provided in subsections (1) to (4) of section 25-A. However, during the period that subsections (6) and (7) were on the statute book, in my humble opinion, grievance applications by workmen aggrieved by the termination of their employment could only be filed in accordance with the provisions of subsection (6) and not subsections (1) to (4) of section 25-A, Industrial Relations Ordinance.

14. It only remaining in regard to the first legal issue involved in these appeals, to notice the various authorities on the subject. So far as the Karachi High Court is concerned except for the solitary decision of the Division Bench in the case of International Laboratories Employees Union, decided on 19-9-1975, the view consistently held appears to be that even in respect of grievance applications against termination of employment, service of grievance notice is a necessary precondition to their maintainability and the procedure provided in subsections (1) to (4) of section 25-A is to be followed. The earliest reported decision of the Karachi High Court on the subject of service of grievance notice appears to be in the case of Saleemsons v. IInd Sind Labour Court Karachi and another P L D 1973 Kar. 1. In that case, no doubt it was held that unless the grievance was brought to the notice of the employer or a complaint filed in respect of the same within the time prescribed under Standing Order 18, the Labour Court had no jurisdiction to entertain the same, but it may be pointed out that the said case was under Standing Order 18 and did not involve interpretation of section 25-A, Industrial Relations Ordinances, as the termination of services challenged by the employee had taken place in 1969 much before even the promulgation of the Industrial Relations Ordinance. The decision in the Saleemsons case thus does not assist us in the determination of the issue whether under section 25-A, Industrial Relations Ordinance service of grievance notices was required even in the case of workers filing grievance applications against termination of their services by the Employer. The next case to which I will refer is that of Naseem Silk Industry v. Vth Sind Labour Court P L D 1974 Kar. 80. In that case a Division Bench of the Karachi High Court held that service of a grievance notice was precondition -to the maintainability of a grievance application under section 25-A, Industrial Relations Ordinance, and observed as follows:-

"Thus the twin conditions for the jurisdiction of the Labour Court continued to be the same as those for the Industrial Court under Standing Order 18, and, as admittedly the 2nd respondent had never served his employer with the statutory notice of his grievance, it is obvious that the view of the Junior Labour Court was correct. As the 2nd respondent had not complied with a pre-condition, the application filed by him could only be dismissed."

15. It may, however, be pointed out that the workman's services in the above reported case were terminated in October, 1972, before the addition of subsection (5) to section 25-A by Ordinance XLVIII of 1972. As such no question of resort to subsection (6) could arise in the said case. The Division Bench noticed the subsequent change in law, entitling a worker aggrieved by the termination of employment to file a grievance petition not earlier than two months preceding the commencement of the Industrial Relations (Amendment) Ordinance, 1972, and while observing that the workman concerned, since his services had been terminated not earlier than two months prior to the promulgation of the aforesaid Ordinance was entitled to the benefits of the said section, but it observed that the aggrieved worker was required under the said subsection to take the matter directly to the Court and consequently he should have filed the fresh application after 9-2-1973, i.e., after the enactment of Act XXIX of 1973, but he did not do sc and in order to bring his case within the said subsection, the first respondent in appeal treated the grievance application, dated 18-1-1973, as an application under subsection (6) which came into force almost a month later. The Division Bench, therefore, treated the grievance application as one to which the law applied before the addition of subsection (6) to section 25-A, according to which the service of grievance notice was necessary. I am in respectful agreement with the view taken by the Division Bench.

16. The other decision of a Division Bench of the Karachi High Court on this issue is reported as International Laboratories Employees' Union v. Sind Labour Appellate Tribunal 1976 P L D 38. In that case it was observed as follows:-

"Two remedies are provided by the statute for re-instatement one is by way of individual grievance under subsection (6) of section 25-A and the other by way of industrial dispute under section 34. The former remedy was not available earlier as Standing Order 10 only provided for the re-instatement of the office-bearers of the Union unless the question was raised as an industrial dispute. It was, therefore, that the legislature in its wisdom added subsection (6) and gave this remedy to the workers but this did not affect the remedy available earlier in case an industrial dispute was raised. In this view of the matter, we do not find any substance in this contention as well."

17. The decisions of the Karachi High Court taking a contrary view are all by learned Single Judges. The first of these decisions to which I will refer is in the case of Karachi Development Authority v. Presiding Officer, Sind Labour Court P L D 1975 Kar. 716. In that case no doubt it was held that the grievance application without service by the aggrieved worker of a grievance notice upon the employer was not maintainable but this decision purported to follow the decisions in the cases of Saleemsons Ltd. and Naseem Silk Industry which pertained to the period before the addition of subsection (6) to section 25-A.

18. In the case of the Karachi Shipyard & Engineering Works v. Sind Labour Court P L D 1975 Kar. 719, a learned Single Judge of the Karachi High Court repelled the contention that the grievance procedure laid down in subsections (1) to (4) of section 25-A has to be followed only in cases other than those relating to removal from service and held that even workers whose services had been terminated were bound to follow such procedure. The learned Judge was persuaded to this view because, in his opinion, subsection (6) was enacted to provide relief only to such aggrieved workers whose termination of employment occurred between the enforcement of Labour Policy on 13-4-197 and the introduction of subsection (6) in section 25-A. It appears that the two Division Bench decisions in the cases of Naseem Silk Ltd. and International Laboratories were not brought to the notice of the learned Judge as they have not been referred to in the said Judgment. The same learned Judge reiterated the above view in the case of Hotel Intercontinental v. Vth Sind Labour Court P L D 1976 Kar. 301, and held that subsection (6) provided that the cases arising during the period not earlier than two months preceding the coming into force of the Industrial Relations (Amendment) Ordinance, 1972, could be filed directly in the Junior Labour Court upon the enactment of the Industrial Relations (Amendment) Act, 1973, but it did not in any manner affect the provisions of subsections (1) to (4) as regards the cases which did not arise within the period mentioned in subsection (6) itself. In the subsequent case of Butt Engineering Industries v. Sind Labour Court P L D 1977 Kar. 166, another learned Single Judge of the Karachi High Court agreed with the view taken in the case of the Karachi Shipyard & Engineering Works and expressed himself as follows:-

"Subsection (6) of section 25-A of the Industrial Relations Ordinance, 1969, dispenses with the procedure prescribed under subsections (1) to (4) in regard to the workers aggrieved by the termination of their employment as a result of retrenchment, dismissal, discharge, lay-off, etc., not earlier than two months preceding the commencement of the Industrial Relations (Amendment) Ordinance, 1972."

19. The last case decided by the Karachi High Court to which I will refer is reported as Abdul Sattar v. Vth Sind Labour Court 1979 PLC 297, decided on 31-3-1979. In that case a learned Single Judge of the Karachi High Court dissented from the view taken by the Lahore High Court in the case reported in P L D 1976 Lah. 1176 and on the basis of the decisions of the Karachi High Court reported in (1) P L D 1975 Kar. 716, (2) P L D 1975 Kar. 719 and (3) P L D 1977 Kar. 166, held that service of grievance notice by the aggrieved workman was a condition precedent to the filing by him 'of a grievance application under section 25-A, even in cases of termination of services. The Division Bench decision in the case of the International Laboratories Employees' Union was not referred to in the above case. Furthermore, in none of the above decisions was the effect of the words 'or the termination of the employment, whichever is later' considered, which sought to cover all terminations of employment after the promulgation of Ordinance IX of 1972.

20. It is not necessary for me to comment upon the decision of the Tribunal in Appeals Nos. Kar. 297 and 298 of 1976, decided on 25-1-1.977, relied upon by Mr. Ali Amjad, because my learned predecessor in the case of Beecham Pakistan Ltd. v. Imdad Khan and others 1978 P L C 375, as well as in Appeal No. 495 of 1976, Nisar Ahmad v. Nizamuddin, decided on 29-2-1977, has taken a contrary view and held, for reasons which in my humble opinion are sound, that subsection (6) of section 25-A, Industrial Relations Ordinance, dispenses with the necessity of serving grievance notice upon the employer before approaching the Labour Court.

21. While on this point I may refer to the reported decisions of the Lahore High Court in support of the view that I have taken. The first case is reported as Messrs Crescent Sugar Mills Ltd. v. Haji Muhammad P L D 1976 Lah. 1176. In that case the learned Single Judge of the Lahore High Court, after a careful examination of the provisions of subsection (6) of section 25-A, Industrial Relations Ordinance, came to the conclusion that cases of termination of employment were covered by the said subsection and not by subsections (1) to (4), and that is such cases no grievance notice was required to be served by the aggrieved workman. His Lordship repelled the contention that subsection (6) was meant only to cater to those cases in which the termination had taken place between the promulgation of Ordinance IX of 1972 and enactment of Act XXIX of 1973. The same learned Judge, in the subsequent case of Sethi Straw Board Mills Ltd. v. Punjab Labour Court No. 3 P L D 1977 Lah. 71, reiterated the view expressed by him is the case of Crescent Sugar Mills.

22. The second decision of the Lahore High Court to which I will refer is reported as Arif Hussain Shah v. The Operative Director, Administration Electric Equipment Manufacturing Co. Ltd. 1979 P L C 389. In that case a learned Single Judge of the Lahore Court, mainly on the basis of the non-obstructed clause in subsection (6) of section 25-A, and 'following the decision in the case of the Crescent Sugar Mills Ltd. held that persons whose services have been terminated by any cause can only file grievance petitions in accordance with the provisions of subsection (6) and not subsections (1) to (4) of section 25-A, Industrial Relations Ordinance. Thus, there are at least three authorities of the superior Courts which support the view that I have) taken that during the period that subsections (6) and (7) of section' 25-A were on the statute book, workmen, whose services had been 1 terminated, were required to file the grievance application in respect of the termination of services within two months of the grievance and service of grievance notice upon the employer was not necessary.

23. It next falls to be considered whether in view of the conflict of decisions upon the above point, condonation upto the difference between the period specified in subsection (6) and that provided in subsections (1) to (4) of section 25-A, be ordinarily allowed as a matter of course. The condonation, in the various appeals before this Tribunal in which this issue is involved, is sought on the basis of the explanation to section 5 of the Limitation Act. The said explanation reads as follows:-

"Explanation.--The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section."

24. Mr. Mahmood Ghani's contention that sufficient cause for the purposes of section 5 of the Limitation Act can only mean circumstances beyond the control of the person seeking condonation would not be strictly correct in respect of cases coming within the purview of the above explanation as the explanation itself indicates what would be sufficient cause in such cases. In the case of Jaivan Ditta Banarsi Das Kapur and another v. Rai Sahib Radha Kishan Kapur and another AIR 1944 Pesh. 74, Division Bench of the Judicial Commissioner's Court, held that where there are conflicting views on certain points and delay in filing an appeal is caused by accepting one of the views, even though the Court takes a contrary view, the Court can extend the time under section 5 of the Limitation Act. In Mushad Rao Dakh Mukh v. Rangho Mali and another A I R 1927 Nag. 247. Findlay, J.C. held:

"Discretion under section 5 should be exercised in favour of a party who has been misled by a judgment of the High Court in computing the period of limitation."

In fact the Judicial Commissioner took the view that it was the duty of the District Judge, in the circumstances of the case, to have exercised his discretion in favour of the appellant.

25. The Indian Supreme Court, in the case of Narhari v. Shankar A I R 1953 S C 419, while repelling the objection that the appeal was filed twenty-one days beyond the period of limitation, observed as follows: -

"Besides, the High Court was wrong in not giving to the appellants the benefit of section 5 of the Limitation Act because there was conflict of decisions regarding this question not only in the High Court of the State but also among the different High Courts in India."

26. Reference may also be made to the decision of the Assam High Court in the case of Governor-General-in-Council v. Jeeraj Talakchand Labhchand and others A I R 1950 Assam 83, in which a Division Bench of that Court explained the intent and scope of the explanation to section 5 of the Limitation Act and observed as follows:-

"but we think having regard to the explanation to section 5 Limitation Act which says--

The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section.

That the appellant must be regarded as having shown sufficient cause for not preferring the appeals within the period allowed by law. It is true the appellant has not filed a formal application under S. 5, Limitation Act, but we do not think that a formal application is necessary. In view of the practice of the Calcutta High Court in computing the period of limitation prescribed for appeals in the manner indicated in a long line of decisions which lay down that the time taken between the date on which the judgment is pronounced and the date on which the decree is signed is to be excluded under section 12, Limitation Act as time requisite for obtaining a copy of the decree. As this appeal was originally filed in the Calcutta High Court, the appellant was undoubtedly misled by the judgments and practice of that Court into believing that appeals filed in such circumstances as the present, are within time. No formal application under S. 5, Limitation Act, is, therefore, necessary."

27. Finally, I may refer to a decision of the Karachi High Court in the case of East and West Steamship Company v. Queens land Insurance Co. Ltd. P L D 1961 Kar. 317. In that case the appeal was filed beyond time but the appellants claimed protection under section 12(2) of the Limitation Act and contended that the time requisite for obtaining copy of the decree should be excluded. This plea was opposed by the respondents on the ground that the application for copy of the decree was made after the preparation of decree and section 12 of the Limitation Act had no application. This preliminary objection was referred to a Full Bench which upheld the same and held that the appellant was not entitled, in the circumstances of the case, to exclude the time for obtaining copy of the decree of the learned subordinate Court. However, the appellant applied for condonation under section 5 of the Limitation Act on the grounds that according to the practice prevailing in the then Chief Court of Sind the period between the date of the judgment and signing the decree was not counted for computing the period of limitation. This practice was based on certain decisions of the Sind Chief Court and the Karachi Bench of the High Court. It was held that the conflicting decisions of the Court and the practice that had developed there was sufficient cause to condone the delay and extend the time of appeal.

28. In the instant case, there are at least five reported decisions of the Karachi High Court, namely, the cases of Karachi Development Authority, (2) Karachi Shipyard and Engineering Works Ltd., Hotel Intercontinental, Butt Engineering Works and Abdul Sattar, wherein the view that prevailed was that even in the case of termination of services the aggrieved workman was required to follow the procedure laid down in subsections (1) to (4) of section 25-A, Industrial Relations Ordinance, and not subsection (6), which was thought to be limited to the cases where termination of services had occurred between the promulgation of Ordinance IX of 1912 and Act XXIX of 1973. In view of this conflict of decisions on the issue which period of limitation was applicable, I am of the firm view that the parties who filed their application in accordance with the provisions of subsections (1) to (4) of section 25-A, Industrial Relations Ordinance were misled by the practice and the conflicting decisions of the High Courts and this Tribunal, and, therefore, all such cases are fit cases in which condonation should be allowed. In four of the appeals before this Tribunal, namely, Appeals Nos. Kar. 106 of 1978, 108 of 1978, Kar. 246 of 1977 and Kar. 357 of 1978, there are no condonation applications but is view of the decision of the Assam High Court in the case of Governor-General-in-Council, I am of the view that formal applications for condonation were not necessary. However, as the orders in the said cases show, not only oral requests for condonation were made, but arguments were also heard by the learned Labour Courts concerned on the issue whether condonation should be allowed or not. Hence these 4 cases also, in my humble view, are fit cases for according condonation upto the difference in the period between that prescribed under subsection (6) and the period prescribed under subsections (1) to (4) of section 25-A, Industrial Relations Ordinance. In the view that I have taken on this issue, it is not necessary to refer to the various authorities cited by Mr. Mahmood Ghani on section 5 of the Limitation Act, as they do not involve consideration of the explanation to the said section.

28. Before examining the merits of the appeals which have been decided on merits also, I will examine Appeals Nos. Kar. 159 of 1978, and Kar. 189 of 1978 (cross-appeals), where the question of condonation is involved in a somewhat different form. These 2 appeals are in respect of the termination of services of workman Imdad Khan, by his employer, Messrs Beecham (Pak) Ltd. There are however, two versions as to when the services of Imdad Khan were terminated. The contention of Imdad Khan is that, in fact, his services were terminated on 7-11-1976, and this was done orally without assigning any reason. The contention of the management on the other hand is that his services were terminated, with effect from 19-9-1975 by a written order, dated 18-9-1975. The grievance notice was admittedly served by lmdad Khan on 9-1-1977, while the grievance application was filed on 15-2-1977. If, therefore, the contention of the management is correct that lmdad Khan's grievance application would be hopelessly time-barred, but on the other hand, if the contention of lmdad Khan is correct that his services were terminated with effect from 7-11-1976, then the grievance application would fall within the period provided in subsections (1) to (4) of section 25-A, industrial Relations Ordinance. The learned Labour Court which originally decided this matter, has held, by its order, dated 16-12-1977, that the services of lmdad Khan had been terminated with effect from 7-11-1976 and that the termination of his services was in violation of the provisions of Standing Order 12. It accordingly set aside the order of termination of his services and directed his re-instatement in service. Against the said order the management filed an appeal which was heard alongwith several other appeals and the view taken by my learned predecessor was that applications against termination of services were governed by subsection (6) of section 25-A, and not by subsections (i) to (4) of the said section. The appeals covered by the said order, including the appeal in question, were accordingly remanded to the learned Labour Court for considering the question of condonation of delay. It will th4s be seen that this Tribunal had given no finding on the question whether the services of lmdad Khan were terminated with effect from 7-11-1976 as claimed by him or with effect from 19-9-1975, as contended by the management. On remand, the learned Labour Court rejected the application by lmdad Khan for condonation on the ground that no sufficient cause or reasons for granting condonation had been made o4t and dismissed the main grievance applications on the ground that it was filed beyond the period of two months from the date of dismissal in contravention of the provisions of subsection (6) of section 25-A, Against this decision appeals have been filed both by lmdad Khan as well as the Management to this Tribunal. The appeal by Imdad Khan challenges the rejection of the condonation application and the dismissal of the main application under section 25-A, while in the appeal by Messrs Beecham (Pak) Ltd., it is prayed that the order of the learned Labour Court be modified to the extent that the grievance application, of Imdad Khan should be held to be time-barred under the entire section 25-A, Industrial Relations Ordinance.

29. I have heard Mr. F.M. Azad, who appeared for Imdad Khan, and Mr. Syed Qamaruddin Hassan, who appeared for Messrs Beecham (Pak) Ltd. The first learned Labour Court, in allowing the grievance; application of lmdad Khan and ordering his re-instatement in service, has based its decision mainly on the testimony of three witnesses, namely, (1) Ghulam Hussain, (2) Khan Baz, and (3) Zahid Shah. No doubt all the three witnesses, who were admittedly employees of Messrs Beecham (Pak) Ltd., at the time that they gave their evidence, have stated that Imdad Khan continued to be in the employment of Messrs Beecham (Pak) Ltd. upto November, 1976, but, in my opinion, it is not possible to rely on their testimony in the face of the evidence which has been adduced to the contrary by the establishment. In the first place, Imdad Khan, in his grievance application, himself admitted that his services were terminated in September, 1975. His contention, however, was that he was again taken back in service by Messrs Beecham (Pak) Ltd., and continued to serve in the said establishment upto 7th November, 1976. However, it has been established that it is the invariable practice in the said establishment to appoint workmen and terminate their services by orders in writing. The order of appointment of lmdad Khan, dated 22-7-1975, has been produced. It bears the signature of lmdad Khan himself. According to that appointment order, Imdad Khan was appointed on a purely temporary basis for a period of two months with effect from 22-7-1975. The services of lmdad Khan were terminated by letter, dated 18-9-1975, with effect from 19-9-75. This letter also bears' the signature of lmdad Khan himself. In view of this order which admittedly bears the signature of lmdad Khan, his contention that either he continued to be in the service of Messrs Beecham (Pak) Ltd. since 27-7-1975, or that he was re-appointed after the termination of his services, without his producing an order of re-appointment, cannot be accepted. Even the witnesses examined by Imdad Khan in support of his claim have confirmed the practice in the establishment of Messrs Beecham (Pak) Ltd. of appointing and terminating the services of workmen by orders in writing. Furthermore, Imdad Khan's witness Khan Baz, also admitted that payment by the establishment is made on signing the pay-roll. The pay-roll record of Messrs Beecham (Pak) Ltd., was produced by the establishment. An examination of that record indicates that there is no mention therein, during the relevant period, of lmdad Khan. He also produced, in support of his contention that he continued to be employed by the establishment upto November, 1976 three covers addressed to him by private parties at the address of the establishment. This circumstance does not establish the fact that he was re-employed by the establishment and has been explained on the basis that admittedly lmdad Khan was residing just behind the factory of Messrs Beecham (Pak) Ltd., and that the postman was in the habit of delivering the letters 'care of premises of the establishment', to Imdad Khan outside the factory premises. To my mind, the three witnesses whom Imdad Khan has examined in support of his claim, namely, Ghulam Hussain Khan, Baz and Zahid Shah, are obliging witnesses and their evidence cannot be believed in view of the documentary evidence showing that the services of Imdad Khan had been terminated on 19-9-1975, and he had not been re-appointed. Since Imdad Khan filed his grievance application on 15-2-1977, it was hopelessly time-barred, not only under subsection (6) of section 25-A, but also under subsections (1) to (4) of that section. No question of condonation, therefore, arises in his case and I accordingly dismiss his appeal on the ground of limitation. The cross-appeal of Messrs Beecham (Pak) Ltd. is in consequence, allowed.

30. I will now proceed to deal with the merits of Appeal No. Kar. 507 of 1977. The facts leading to this appeal, shortly stated, are that in consequence of domestic inquiry held in pursuance of a show-cause notice, dated 19-7-1978, respondent Gul Muhammad Khan, who was President of the Employees' Union of the appellant establishment, Messrs Fattehally Chemicals Co., was dismissed from service with effect from 21-8-1976. He challenged his dismissal before the learned Labour Court which, by its order, dated 25-6-1977, set aside the order of dismissal on the ground that inquiry proceedings were illegal and in violation of the law as well as principles of natural justice, and accordingly ordered his re-instatement in service. Against the said order, the appellants came up in appeal to this Tribunal which, after holding that the grievance application against termination of services or dismissal is to be filed in accordance with the provisions of and within the period prescribed in subsection (6) of section 25, remanded the case to the learned Labour Court for determining whether condonation should be allowed as the respondent was mistaken in considering that the grievance application had to be filed in accordance with the provisions of subsections (1) to (4) of section 25-A. On remand, the learned Labour Court has allowed the condonation, with which view I concur for the reasons already given. It, therefore, remains to be considered whether the order of re-instatement of respondent Gul Muhammad is based on adequate grounds. The learned Labour Court has held the entire enquiry proceedings to be bad for the following reasons:-

(a) That contrary to the provisions of clause (4) of Standing Order 15, the show-cause notice leveled imputations and allegations against the appellant covering the period from 1969 upto 13-7-1976;

(b) that it is not clear by whom the Enquiry Officer was appointed;

(c) that the application of the respondent showing no confidence in the Enquiry Officer was hurriedly rejected without proper or adequate consideration by the management;

(d) that the Enquiry Officer acted as a 'tool' of Mr. Zaidi, the Administrative Director of the management;

(e) that the respondent was never informed of the names of the witnesses who were to be examined against him;

(f) that the record of the inquiry does not appear to have been properly maintained; and

(g) that the inquiry on 6-8-1976 was held ex parte without giving notice to the respondent of the said date.

31. Mr. Mahmood Ghani, the learned representative for the appellants, contended that the respondent himself was present on 4-8-1976, and took part in the domestic enquiry, which was adjourned to 5-8-1976, on which date it was further adjourned, on the application of Mirza Khan, the representative of the Union, to 6-8-1976, and that on this date, since the respondent did not turn up, the inquiry was held ex parte. Now it may be mentioned that on 3-8-1976 the respondent had submitted an application for adjournment of the inquiry proceeding on the ground of partiality of and want of confidence in the Enquiry Officer. The Enquiry Officer thereupon postponed the enquiry but Mr. Zaidi, the Director, fixed the inquiry for 4-7-1976 by the letter, dated 3-8-1976. This suggests that it was not the Enquiry Officer who was incharge of the proceedings but rather it was Mr. Zaidi who was directing the inquiry proceedings, even without reference to the Enquiry Officer. It may further be pointed out that the application of the respondent dated 3-8-1976, showing lack of confidence in the Enquiry Officer, was also hurriedly rejected by Mr. Zaidi on the very same day.

32. There were three circumstances which have persuaded me to concur in the view taken by the learned Labour Court that the domestic enquiry was not held in accordance with either the provisions of the law of the principles of natural justice and that the respondent did not have a fair or adequate opportunity to defend himself. The first such circumstances is the show-cause notice itself. As already pointed out, this notice contains wild notions and charges stretching from May, 1969 to July, 1976. The perusal further discloses that there were as many as ten different types of allegations which do not even refer to dates or the period when the alleged acts or misconduct was committed. Again, the show-cause notice, despite its vagueness as to the time of the commission of certain acts alleged against the respondent and the D large number of separate heads of charges contained therein, required the respondent to submit his explanation within 48 hours. As such nod only the show-cause notice is contrary to the provisions of clause (4)I of Standing Order 15, which provides that the alleged acts of misconduct must be brought to the notice of the offending worker within one month, but further it was not reasonably possible for the respondent to submit his explanation within a period of 48 hours. The show-cause notice, therefore, indicate the mind of the management that they were anxious to speedily get rid of the respondent.

33. No doubt, even after the rejection of his application, dated 3-8-1976, for change of the Enquiry Officer, the respondent took part in the proceeding held on 4-8-1975, but it is possible that he was frustrated by the conduct of the management and thought it futile to take further part in the proceedings. This may have resulted in his failure to attend t-he enquiry on 5-8-1975. The mere fact that on the date, Mirza Khan, the representative of the Union, of which the respondent was the President, was present did not absolve the Enquiry Officer from the responsibility of intimating the next date of hearing, i.e. 6-8-1976, to the respondent, specially as the management had in the past invariably informed the respondent directly of the dates of hearing. As such the Enquiry Officer was not justified in holding ex parte proceedings on 6-8-1976, particularly as the respondent should in the ordinary course have been available on the premises.

34. The learned Labour Court has also commented upon the fact that whereas the first twelve pages of the Enquiry Reports have been produced in original, the last page, on which there is the order of the Managing Director, for issuance of the second show-cause notice to the respondent, is on the carbon copy of the report, which bears only the initials and not the signature of the Enquiry Officer. It is not known under what circumstances the last page of the original copy was not produced before the learned Labour Court. Again, whereas the management took 4 days time to pass a simple order for issuance of second show-cause notice to the respondent, he was given only 24 hours time to submit his explanation as to why he should not be dismissed from service. The management seems to have it self realised that this was too short a period to make a reply to a 13-paged enquiry report and consequently gave the respondent further 24 hours for submitting a reply, but even this extended time, in my view, was not sufficient for submission of proper reply by the respondent.

35. In view of the above shortcomings, I would concur with the view taken by the learned Labour Court that the Enquiry was not fair and proper and accordingly set aside the order of termination of services of the respondent but would give an option to the management to hold a fresh enquiry against the respondent in accordance with the provisions of Standing Order 15. Such inquiry should be completed within a period of 4 months from the date of this order. It may be pointed out that the fresh inquiry can only be held in respect of such acts and matters which were brought to the notice of the respondent within one month of their commission. Obviously, an Enquiry Officer other than the Enquiry Officer who held the previous enquiry, can only be appointed. The payment of back benefits to the respondent would depend on the result of that inquiry.

36. I will next proceed to deal with the merits of Appeal No. Kar. 80 of 1976. This appeal has been filed by the Souvenier Tobacco Co., against the workman, Ibrahim Khan. The said Ibrahim Khan, who was working as an Operator on the Shell Cutting Machine in the Printing Department of the appellant establishment, was retrenched with effect from 27-1-1976, by an order, dated 29-1-1976. The order specifically states that due to lack of demand of the brand of cigarettes which were being produced on the Shell Cutting Machine and on account of financial stringency, the service of the respondent has been rendered surplus and as he refused the alternate appointment offered to him by the management, there was no option but to terminate his services. Similar letters of termination of services were issued to the other workers on the Shell Cutting Machine in the Printing Department, whose number is stated to be 14.

37. Respondent Ibrahim Khan challenged the order of termination of his services before the learned Labour Court, which by its order, dated 3-1-1977, allowed the application of the respondent and ordered his re-instatement in service. Against this decision, the appellants came up in appeal before this Tribunal which dealt with it alongwith other appeals involving question of condonation. The Tribunal, by its order, dated 10-9-1977, remanded the case to the learned Labour Court for considering whether condonation should be allowed, since the grievance application was filed beyond the period of two months laid down in subsection (6) of section 25-A. On remand, the learned Labour Court allowed the condonation application, since the application was filed within the period provided in subsections (1) to (4) of section 25-A.

38. Clause (1) of Standing Order 12 provides that the services of a permanent workman can be terminated by the employer for any reason other than misconduct on one month's notice or wages in lieu of notice. There are two more requirements for so terminating the services of a workman. They' are laid down in clause (3) of Standing Order 12. These requirements are (1) that such termination must be by order in writing, and (2) that such order must state the reasons for the termination. In the instant case all these requirements have been fulfilled. As already stated, the services of the respondent and 13 other co-workers on the Shell Cutting Machine were terminated on 26-1-1976 by identical written orders which gave detailed reasons for the termination r of their services. These reasons were grounded on the fact that management was closing down the Shell Cutting operations, in connection with which respondent was employed, as there was no demand for the products of the shell cutting machine. It is not controverted that the said operations have not been re-started. Since the respondent had no right to be absorbed in any other Department of the establishment at least none has been shown on record to exist his claim to be absorbed in an equivalent post in another Department was not well-founded. The claim was simply based on the fact that the respondent, during the is years of his service in the establishment, has also worked as an Operator in the Production Department. It appears that this assignment, which was of a very short duration, was due to the exigencies of the manufacturing process of the appellant management. This short assignment conferred no right upon the respondent to be absorbed in another Department of which he had no or little experience and where his utility at best would be doubtful. In any case, I am satisfied that the retrenchment of the respondent was due to the closing down of the shell cutting operations. Of course, if the appellants had re-started these operations within one year of their being closed down, the respondent would have been entitled to be re-employed as a worker in the appellant establishment. The learned Labour Court seems not to have appreciated the fact that the shell cutting operations were closed down due to drying off of demand for its products and the consequent incurring of losses in such operations. The sustaining of such losses has been admitted in the settlement arrived at between the appellants and the Collective Bargaining Agent. It thus cannot be said that the plea of losses was just a device to retrench workmen.

39. I am accordingly of the view that the orders of termination of services of the respondent do not suffer from any legal infirmity and accordingly, uphold the same and allow the appeal.

40. Appeal No. 357 of 1978 is by Mr. Mazhar Ali Chohan, now practicing as an Advocate, against the decision of the learned Labour Court, given on 18-7-1970 dismissing his application for re-instatement in the service of the S. . T. C., on the ground that it has been filed beyond the period of two months as required under subsection (6) of section 25-A, Industrial Relations Ordinance. Although I have taken the view that in such cases condonation should be allowed the grievance application is filed within the period prescribed in subsections (1) to (4) of the said section but in the instant case the question which falls to be determined is whether the appellant is a workman for the purposes of the Standing Orders Ordinance and consequently entitled to file a grievance application. The appellant admittedly was the Deputy Traffic Manager in the S.R.T.C. he was appointed with effect from 1-8-1974, on probation period of two years. His period of probation itself suggests that he .was not a workman for the purposes of the Standing Order Ordinance. In any case, this Tribunal has held in Appeals Nos. Kar. 191 of 1979 to Kar. 193 of 1979, decided on 2-9-1979, that an Assistant Traffic Manager is not a workman for the purposes of the Standing Orders Ordinance, as he is not employed to do any skilled or unskilled, manual or clerical work. The appellant, as Deputy Traffic Manager, was higher in status than an Assistant Traffic Manager. As such, on the basis of the above decision, I would hold that the appellant is not a workman for the purposes of the Standing Orders Ordinance and consequently is not entitled to file a grievance application under subsection (6) of section 25-A, Industrial Relations Ordinance read with clause (3) of Standing Order 12. I would, accordingly, dismiss this appeal on that ground.

41. There remains to be considered on merits Appeals Nos. Kar. 94 of 1978 and Kar. 95 of 1978, which have been filed by the employees of the National Institute of Cardio-Vascular Diseases, Karachi, against the termination of their employment. Muhammad Arshad, the appellant in Appeal No. 94 of 1978, was employed in the said Institute as Telephone Operator. He was dismissed from service by an order, dated 12-11-1978. Likewise, Iqbal Ahmad, who was appointed as Nursing Attendant Trainee in the said Institute, on 11-3-1976, was dismissed from service by an order, dated 1-12-1976. Both of them filed grievance petitions to the Labour Court challenging their dismissal from service. Their applications were resisted by the Institute on two preliminary grounds firstly, that the Institute was not a Commercial Establishment as defined in section 2 of the Sind Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and as such the provisions of the said Ordinance would not be applicable to the Institute and its employees could not, therefore, file applications under section 25-A, Industrial Relations Ordinance, read with Standing Order 12(3) against the termination of their employment, and secondly, that the grievance applications of the appellants were time-barred, having been filed beyond the period of two months prescribed in subsection (6) of section 25-A. The learned Labour Court has dismissed the applications of the two appellants on the sole ground of delay in filing the grievance applications and has not considered the first ground taken by the Institute, that it is neither an Industrial establishment nor a Commercial establishment for the purposes of the Standing Orders. Although I have held in this judgment that condonation should be allowed in cases where grievance applications against termination of service are filed within the period laid down in subsections (1) to (4) of section 25-A, and, therefore, I should ordinarily have remanded the two appeals to the learned Labour Court for decision on merits, but, I think that such a course would be a waste of efforts and simply prolong the proceedings unnecessarily as am of the view that there is substance in the first objection of the Institute which, unfortunately, has not been considered by 'he learned Labour Court. This Tribunal has held in Appeals Nos, Kar. 214 of 1979 and Kar. 215 of 1979, decided on 16-9-1979, that only a workman as defined in the Standing Orders Ordinance, 1968, is entitled to file a grievance application under section 25-A against his dismissal or termination of service. A person can be a workman for the purposes of the Sind Industrial and Commercial' Employment (Standing Orders) Ordinance; 1968, only if he is employed in the Industrial or Commercial establishment as defined in the said Ordinance. The objects of the Institute are to establish and run hospitals for the care of persons suffering from diseases of the heart and arteries and to carry on educational activities relating to care of persons suffering from such diseases. The Institute is essentially a non-profit making organization' and is running on, apart from the fees received by it for the services I rendered by it in connection with medical attendance, the grants received by it from the Central Government. The Institute received, in the year 1971-72, grant from the Central Government to the extent of Rupees Four Lacs. In the year 1972-73, the grant from the Central Government increased to Rupees Five Lacs. Similar amount was granted by the Central Government in the year 1973-74. For the year 1974-75, the grant from the Central Government was increased to Rupees Six Lacs, and in the year 1975-76, this grant was further increased to Rupees Eight Lacs. This shows that the Institute has been substantially relying upon the grants-in-aid from the Central Government for performing humanitarian functions in the field of providing medical care to persons suffering from diseases of heart and arteries. It has been held by the Karachi High Court in the case of (1) Educations Uplift Fund Association of Seventh Day Adventists in Pakistan v. Vth Sind Labour Court PLD 1978 Kar. 566 and (2) Holy Family Hospital, Association v. IIIrd Sind Labour Court PLD 1979 Kar. 529; that hospitals run on no profit basis do not fall within the scope of commercial establishments or Industrial establishments for the purposes of the Standing Orders Ordinance and hence an employee of such a hospital is not a workman for the purposes of the said Ordinance and cannot move an application under section 25-A, Industrial Relations Ordinance, seeking re-instatement in service. It was further held in the case of the Holy Family Hospital that mere recovery of charges from patients does not change the basic character of the hospital as a charitable organization in view of the fact that profits are not made for distribution between the members or management of the hospital. The Division Bench decision in the case of Liaquat National Hospital v. Government of Sind P L D 1977 Kar. 843, holding that the Liaquat National Hospital was an establishment for the purposes of the Workers' Children (Education) Ordinance, 1972, and was, therefore, liable to pay the education cuss under the said Ordinance, is distinguishable because the definition of establishment in the said Ordinance covers a much wider field than that covered by the definitions of 'commercial establishment' and 'industrial establishment' in the Standing Orders Ordinance. I am, therefore, of the view that the grievance applications by the appellants in these two appeals against the termination of their services were not maintainable and would, accordingly, dismiss .the said appeals.

42. Before concluding this judgment, I will refer to Appeal No. Kar. 107 of 1978, filed by worker Ahmad Nawaz, challenging his dismissal from service by the Karachi Shipyard and Engineering Works. The worker's grievance application under section 25-A, Industrial Relations Ordinance has been dismissed by the learned Labour Court, vide its order, dated 8-2-1978, on the ground that the application had been filed beyond the period of two months provided in subsection (6) of section 25-A, Industrial Relations Ordinance. I have already dealt with this issue and taken the view that in such cases if the application has been filed within the period provided in subsections (1) to (4) the condonation should be allowed in view of the conflict of decisions on the point. However, there is an observation by the learned Labour Court that the grievance application of appellant Ahmad Nawaz was time-barred even under the provisions of subsections (1) to (4) of section 25-A. It would, however, appear that the learned Labour Court was not quite correct in making these observations. Under subsection (1) a worker is required to bring his grievance to the notice of the employer within three months of the grievance having arisen. Thereafter a period of one week to 15 days is allowed to the employer to take a decision on the grievance notice and communicate the decision to the workman. The workman, if he is dissatisfied with such decision or if no decision is communicated to him by the employer within the prescribed period can file grievance application within two months of the communication to him of the decision of the employer or the period, prescribed in subsection (3), as the case may be, as a workman can file a grievance application within a period of 5 months and seven days to 5 months and 15 days from the date his grievance arose. In the instant case, the services of the appellant were terminated by an order, dated 11-5-1976. The grievance applications was filed on 12-8-1976, i.e., little after three months of the date of the said order. The grievance application was preceded by a grievance notice, dated 27-5-1976. The decision of the employer upon the grievance notice was received by the appellant on 12-6-1976. For computing the period of limitation in respect of a grievance application, the date from which' the period of limitation is to be reckoned is to be excluded by reason' of the provisions of section 12 of the Limitation Act, as held by the Karachi High Court in the case of Union Cold Storage Company Ltd. v. Muhammad Akram 1979 P L C 185. Thus, the grievance application of appellant was within the period prescribed under subsections (1) to (4) of section 25-A, Industrial Relations Ordinance, if the date on which the decision of the employer, namely, 12-6-1976, is excluded. I am, therefore, of the view that the decision of the learned Labour Court that the grievance application' is time-barred even under subsections (1) to (4) of section 25-A, Industrial Relations Ordinance, is not correct and cannot be maintained. This case will, therefore, be remanded to the learned Labour Court for decision on merits alongwith other cases in which condonation has been allowed.

43. To sum up, in Appeals Nos. KAR-506 of 1977, KAR-82 of 1978, KAR-83 of 1978, KAR-246 of 1979, KAR-106 of 1978, KAR-107 of 1978 and KAR-108 of 1978, condonation is allowed and these cases are remanded to the respective learned Labour Courts for decisions on merits; Appeals Nos. KAR-50 of 1978 and KAR-189 of 1978 are allowed, the impugned orders /observations are set aside; Appeal No. KAR-507 of 1977 is rejected and the impugned order set aside with option to the appellant to hold a fresh enquiry; and Appeals Nos. KAR-54 of 1978, KAR-95 of 1978, KAR-159 of 1978 (cross-appeals to Appeal No. KAR-189 of 1978) and KAR-357 of 1978 are dismissed.

A.E.

Order accordingly.

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