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Petition No. 196 of 1982, decided on 1st A4igust, 1985.
‑‑‑S. 25‑A‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(4)‑‑Dismissal from service‑‑Charge‑sheet to be served on workman within one month from knowledge of charges‑‑Charge‑sheet served beyond one month on a workman held, was clearly beyond time.
‑‑‑S. 25‑A‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(1)‑‑'Workman'‑‑Obiter dicta‑‑Observation of a superior Court, even in the nature of obiter dicta, expressed in a particular case, held, was binding on lower Court.
‑‑‑S. 25‑A‑‑Grievance petition‑‑Two reports of enquiry proceedings‑ Drafting of second report subsequently, created doubt as to the employer's intention against employee‑‑In absence of any explanation, held, it was not proper for the employer to have second report.
‑‑‑S. 25‑A‑‑Grievance petition‑‑Procedural irregularities‑‑Effect‑ Ordering enquiry without considering reply to employee to the charge‑sheet, held, had prejudiced employee.
1984 P L C 1028 rel.
‑‑‑S. 25‑‑Grievance petition‑‑Filing of‑‑Considering date of decision of appeal as date of cause of action, grievance petition, held, was within time.
1980 P L C 234 distinguished.
1982 P L C 582 rel.
‑‑‑S. 25‑A‑‑Civil Procedure Code (V of 1908), 0.1, R.9‑‑Grievance petition‑‑ Misjoinder or non‑joinder of parties‑‑Effect‑‑Employer assuming powers of dismissal could be considered proper addressee of the grievance notice as well as person from whom relief could be obtained‑‑No claim, held, could be defeated by misjoinder or non‑joinder of parties.
‑‑‑S. 25‑A‑‑Grievance petition‑‑Petition of employee being proper and within time‑‑Labour Court set aside order of dismissal and ordered re‑instatement‑‑Employee, however, was not awarded back benefits for his failure to state in petition that he was. not gainfully employed during period of dismissal.
1984 P L C 919 rel.
Date of institution: 1st August, 1985.
Muhammad Musa, petitioner, was dismissed from service on 7‑6‑1981 on the charges of embezzlement, bribery and interpolation in the official record. He has challenged the order of his dismissal by means of an application under section 25‑A of the Industrial Relations Ordinance, 1969, in this Court on the ground that:‑
(i) he was innocent;
(ii) he was not given a chance of defence;
(iii) the Enquiry Officer as well as the management committed procedural irregularities; and
(iv) the charge‑sheet was time‑barred.
2. The respondents, in their written settlement, have denied each of the petitioner's allegations levelled against them. They further alleged that the petitioner does not fall within the definition of worker as such he has no locus standis to move this Court; the petition is time‑barred and that the West Pakistan Industrial and Commercial Employment Standing Orders Ordinance, 1968, hereinafter to be called as the Ordinance, taken recourse to by the petitioner, is not applicable here because the parties are governed by their own statutory rules
3. With a view to resolve the controversy, the parties were given a chance to lead evidence. At the same time, the learned counsel for the parties were given full hearing to advance their case at the time of arguments. Keeping in view the contents of the evidence and the relevant provisions of law, I am of the opinion that the petitioner has a good case. The petitioner's main contention is that he is to be governed by the Ordinance so far as the terms and conditions of his employment are concerned. In the light of Standing Order 15(4) of the Ordinance, the charge‑sheet was to be served on him within one month of the alleged misconduct or at the most from the date of knowledge of the management. In para. 5 of the written statement, the respondents admit that the charges were in their knowledge since 19‑1‑1980. They could, from this date, serve the charge‑sheet on him within one month only. On the other hand, the charge‑sheet was served upon him on 5‑5‑1980. It is, for that matter, not within the purview of Standing Order 15(4) of the Ordinance. The petitioner's view point is correct. He has been held workman in accordance with the definition given in the Ordinance by the worthy Punjab Labour Appellate .Tribunal, Lahore, in its judgment, dated 19‑5‑1984 which was passed in an appeal revolving around the question of petitioner's status. The knowledge of the management with regard to the misconduct can be fixed up on 19‑1‑1980 as admitted by the respondents themselves in para. 5 of their written statement. The charge‑sheet is Exh. P.1 and is dated 5‑5‑1980. It is clearly beyond time.
4. The respondents have tried to meet the situation from a different angle. According to them, the petitioner was ousted from the definition of workman given in the Industrial Relations Ordinance, 1969, by this Court, vide its judgment, dated 10‑3‑1984. The petitioner went in appeal against this judgment before the worthy Punjab Labour Appellate Tribunal. His appeal succeeded. No doubt, the worthy Appellate Tribunal has held him a workman under the Ordinance but it is obiter dicta. The only question before it was as to the petitioner's status under the Industrial Relations Ordinance, 1969. The petitioner's status under the Ordinance, was not at all at issue. In the given situation, this Court is not bound by that finding. The Colony Co‑operative Farming Union has its own statutory rules with regard to terms and conditions of service of its employees. Moreover, it is neither an industrial nor a commercial establishment as provided by the Ordinance. L, see no force in this argument. Admittedly the point of petitioner's status under the Ordinance was not at issue before the worthy Punjab Labour Appellate B Tribunal but the finding in this connection cannot be without any justification. The presumption is that the worthy Appellate Tribunal would have considered this aspect of the case before giving any decision. It is therefore, to be considered a well‑thought conclusion. Even otherwise, the respondents cannot succeed on this score. Generally speaking, it may be obiter dicta but in a particular case every observation of a superior Court is binding on the lower Court. Whatever has been observed by the superior Court in a particular case lower Court is to follow irrespective of any objection with regard to issue of fact or issue of law. It is also pointed out that the respondents challenged the decision of the worthy Labour Appellate Tribunal in the worthy High Court but failed. The findings of worthy High Court also fortify my humble submission.
5. The petitioner has pleaded innocence so far as the charges are concerned. To assess the truth of his contention, I have gone through the enquiry proceedings which are part of the record. Except one flaw in them, I see nothing in favour of the petitioner. The flaw, which is notable, is the existence of two reports. The respondents submitted the second report by means of additional evidence. It is much detailed as compared with the other one. The drafting of second report subsequently creates a doubt as to the respondents' intention against the petitioner. In the absence of any explanation, it was not proper for the respondents to have second report.
6. The petitioner further says that he was not given a chance of defence. In other words, the enquiry was conducted ex parte without any notice to him as provided by law. This contention of the petitioner is not correct. His own evidence shows that he was duly informed of the proceedings by the Enquiry Officer. In this regard, I rely on Exh.P.9 which is an application addressed by the petitioner to the Enquiry Officer. In this application, he admits that he was in receipt of the notice of enquiry. He did not appear intentionally for the reason that he was not provided with the copies of the record to prepare his reply to the charge‑sheet. He was even informed of the enquiry through a proclamation in the newspaper, vide Exh . R.11.
7. The next objection is with regard to procedural irregularities. It is stated that the enquiry was ordered without considering the reply to the charge‑sheet. For that matter, the petitioner has been prejudiced. I agree with this plea as well. In support of my version, I rely most respectfully on 1984 P L C 1028 wherein an appeal titled Punjab Urban Transport Corporation v. Muhammad Naeem Khan, the Punjab Labour Appellate Tribunal, Lahore, held as under:‑
"The enquiry can be ordered only after considering the reply to the charge‑sheets, if the reply has been found unsatisfactory."
8. The respondent have also taken certain objections which I must discuss here. Their first objection is that the petitioner is not a workman. This objection needs no discussion in view of the controversy having been set at rest by the worthty Labour Appellate Tribunal, Lahore, I and subsequently by the worthy High Court by their judgments, dated 29‑5‑1984 and 4‑3‑1985 respectively. The petitioner is a workman hence, can come to this Court by all means.
9. The respondent further says that the grievance notice and subsequently grievance petition are time‑barred. According to them, the petitioner was dismissed from service on 7‑6‑1981. The petitioner served the grievance notice on 28‑2‑1982. The period of limitation provided by section 25‑A of I. R. O., 1969, being three months, it is time‑barred. As a consequence to that, the application is also to be considered beyond limitation. To meet this situation, the petitioner has taken the help of appeal which he moved to the competent authority before coming to this Court. According to him, the appeal was dismissed on 14‑2‑1982. He was informed of the decision vide endorsement, dated 21‑2‑1982. Considering the date of decision of the appeal as the date of cause of action, the grievance notice is perfectly within time. I consider the petitioner's stand proper. During the course of arguments, the learned counsel for the respondents relied on 1980 P L C 234 F whereby in an appeal titled Joseph Bhatti v. PRTB, Rawalpindi, the Punjab Labour Appellate Tribunal held that time‑barred departmental appeal is not substitute of grievance notice to the employer For that matter, it cannot help in extending time. Most respectfully I submit that facts of the present case are different from those referred in 1980 P L C 234. In that case, there was a provision of departmental appeal but was found time‑barred. It is why that it was not considered helpful. In the present case, no department appeal is provided. For that matter, the petitioner is not hit by the point of limitation. The petitioner's case is covered by 1982 P L C 582 wherein an appeal titled Ghazi Khan v. Sind Road Transport Board and another, the worthy Sind Labour Appellate Tribunal held that practice of preferring appeal to the higher authorities provided that appeal is within reasonable time, is sufficient for giving rise to the cause of action for the service of grievance notice.
10. Lastly, the respondent says that the Ordinance is not applicable to the petitioner. I have already given my opinion in this regard, therefore, I need not repeat my arguments.
11. During the course of arguments, the learned counsel for the respondents also stated that the decision as to the petitioner's dismissal was taken by the Board of Directors of Colony Cooperative Farming Union Limited Khanewal and not the respondents as such neither the grievance notice which has been served on the present respondents is valid nor the application is proper. This version can be repelled by the last para. of the impugned order wherein the respondent No. 1 says:‑
"Now, therefore, in exercise of the powers vested in me, I Syed Barkat Ali Shah, Secretary, Colony Cooperative Farming Union Limited, Karachi, in pursuance of the decision taken by the Board of Directors, do hereby dismiss said Chak Manager from service with immediate effect from 30‑5‑1981".
Admittedly, the respondent No. 1 has assumed the powers of dismissal. For that matter, he is to be considered proper addressee of the grievance) notice as well as person from whom relief can be obtained. Moreover, on the basis of principle of law laid down in Order 1, Rule 9 of C.P.C., no claim can be defeated by misjoinder or non‑joinder of parties. G Lastly, the petitioner in good faith was in doubt as to the‑real person from whom he could get the relief. To meet the eventuality, the respondent should have taken objection in their written statement. They did not do so. It means that they considered themselves competent for receipt of grievance notice as well as proper person from whom relief could be obtained.
12. For the foregoing reasons, I consider the application proper, as such accept the same to the extent of setting aside of the impugned order and re‑instatement of the petitioner. He, however, cannot be awarded the back benefits on the basis of principle of law laid down in 1984 P L C 919 relating to a decision of the worthy Punjab Labour Appellate Tribunal, Lahore, in Packages Limited, Lahore, v. Amanat N Ali and Amanat Ali v. Packages Limited, Lahore, wherein it has been held that back benefits, where the petitioner not stating that he was not gainfully employed during the dismissal period, cannot be awarded. In this case, the petitioner nowhere has stated that he was not gainfully employed during this period. Consequently, he cannot claim back benefits. His request to this extent is disallowed.
A. A.
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