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1985 C L C 1527

[Karachi]

Before Naimuddin and Tanzi17ur-Rehman, JJ

MUHAMMAD ALI–Petitioner

Versus

SIND LABOUR APPELLATE TRIBUNAL and another-Respondents

Constitutional Petition No.474 of 1981, decided on 19th February, 1985.

Ch.Rashid Ahmad for Appellant.

Khurshid Anwer Shaikh for Respondent No.3.

Dates of hearing: 6th and 7th February, 1985.

JUDGMENT

TANZIL-UR-REHMAN, J.– This is a Constitutional Petition under Article 9 of the Provisional Constitution Order, 1981.

2. The facts as alleged by the petitioner in his petition briefly stated, are that the petitioner had been in the employment of respondent No.3 (Dawood Cotton Mills Ltd.) as a permanent workman since 6-2-1969. On 18-10-1978 when he went to the Time Office of Respondent No.3 he was not allowed to resume his duty. When he made protest for the alleged illegal action, he was charge-sheeted for absenting himself from duty for more than ten days. He, however, replied the charge-sheet. An enquiry was, then, started against him which concluded in his dismissal from service by an ex parte order, dated 5-5-1979.

3. As alleged by the petitioner, it was on 1-8-1979 that he came to know of his dismissal from service through some workers of Respondent No.3. He then made a representation to the Managing Director of Respondent No.3 and requested him for his re-instatement. His request having not been acceded to, he filed an application under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the said Ordinance) in the Sind Labour Court No. IV, Karachi.

4. The learned IVth Sind Labour Court, Karachi by his order, dated 22nd March, 1980 dismissed the said application. The petitioner then filed an appeal under section 37(3) of the said Ordinance before the learned Sind Labour Appellate Tribunal, Karachi who also dismissed the same by his order dated 5-10-1980. Still aggrieved, the petitioner filed the above constitutional petition in this Court.

5. Choudhry Rashid Ahmed, learned counsel for the petitioner in support of his petition raised the following contentions:-

(i) Notice of grievance as contemplated by section 25-A of the said Ordinance is within time.

(ii) As the order of dismissal itself is illegal and void ab initio, the question of limitation does not arise.

(iii) The delay in giving notice of grievance is liable to be condoned.

6. It will not be out of context to mention here that the learned Labour Court, while dismissing the said application, has held that the notice as contemplated by section 25-A of the said Ordinance was within time but the order of dismissal was strictly in accordance with law. The learned Tribunal, while maintaining the order of the learned Labour Court, has held that the service of notice was not within time and the enquiry proceedings would be deemed to be invalid as the respondent Mills has failed to establish that due intimation of the holding of inquiry was given to the petitioner.

7. As regards the first contention, it is on record that the notice of grievance though bears the date at 4-8-1979 but it was received in the office of respondent No.3 on 13-8-1979. Subsection (1) of section 25-A of the said Ordinance provides that .a worker may bring his grievance in respect of any right, guaranteed or secured to him by or under any law or any award or settlement for the time being in force, to the notice of his employer in writing within three months of the day on which the cause of such grievance arises. The learned Labour Court as well as the Tribunal both have held that the order of dismissal was passed on 5-5-1979 and was received by the petitioner on the same day. Thus, it cannot be said that the grievance has been brought to the notice of respondent No.3 within 90 days of the accrual of the cause of such grievance. The requirement of the law is that the notice should actually be served within three months. The contention that the notice of girevance was served on respondent No.3 in time, therefore, falls flat.

8. Learned counsel for the petitioner in support of his second contention that the order, dated 5-5-1979 of dismissal was void and, therefore, the question of limitation does not arise, has referred to three cases namely, Syed Nazir Hassan v. Settlement Commissioner, Lyallpur and another P L D 1974 Lah. 434, Abdul Qayyum Khan v. Mian A.M.Said and 4 others P L D 1975 Lah. 707 and Yousuf Aziz v. Mst. Aqeela Begum and 3 others P L D 1978 Karachi 205. In the first decision given by a learned Single Judge of Lahore High Court, no inquiry as required by the various paragraphs of the Settlement Scheme No.1 was held by the Deputy Settlement Commissioner to ascertain the entitlement of the petitioner and so the order rejecting C.H. Form, in the circumstances of the case, was held to be void and, thus, it was held that the question of limitation did not arise against a void order. In the second decision, again, by a learned Single Judge of Lahore High Court, the impugned order, having been passed at the back of the petitioner and without giving him any notice as required by law, was held to be a nullity in the eye of law and the period of limitation was, therefore, held to have begun from the date of the knowledge by the petitioner of such order. In the third decision given by a Division Bench of this Court it was observed that the statute of limitation will not be attracted if the order appealed against is a nullity in law.

9. It seems to be settled law that the statute of limitation can only be ignored if the order is shown to have been passed without jurisdiction, when the commencement of the period of limitation is dependant on that order. The learned counsel for the petitioner, in the present case, has A not been able to show that the impugned order has been passed without lawful authority and is void ab initio, so as to invoke the constitutional jurisdiction. The first submission he made was that the learned Tribunal acted illegally to upset the finding of the learned Labour Court on the point of notice in the absence of any cross-objections filed by respondent No.3. In support of this submission he relied on a case reported as Khairati and 4 others v. Aleem ud Din and another P L D 1973 S C 295. In that case, the point of limitation was taken in the second. Appeal against a decree passed in appeal on a suit for specific performance, which was allowed to be raised in the High Court but later on was not pressed and thus the Supreme Court did not allow the petitioner to re-agitate it and more so because the petitioner had not filed any cross-objections in the First Appellate Court.

10. On the other hand, Mr. Khurshid Anwar Shaikh, learned counsel for respondent No.3 referred to the provisions of Order XLI, rule 33, C.P.C. and placed his reliance on three decisions reported as Messers S.M.Yusuf & Bros. v. Mirza Muhammad Mehdi Pooya and another P L D 1965 S C 15; Rambilas Singh and others v. Lokenath Chaudhuri and others A I R 36 Patna 405 and B.Iswarayya v. Swarnam Iswaryya AIR 1931 P C 234.

11. It is correct that generally, unless there is an appeal or cross-objection against a decree, it will not be varied but Rule 33 of Order XLI, C.P.C. provides an exception to this rule. The Appellate Court, under this rule, has power to pass any decree and make any order which ought to have been passed or made and to pass or make such further order or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is to a part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. The appellate Court can, therefore, modify or reverse even that part of the decree which has not been appealed against. It will be of advantage to quote below the observations of the Supreme Court in the first mentioned case P L D 1965 S C 15 cited by the learned counsel for respondent No.3:-

“The terms employed to confer the power are of the widest amplitude to enable an appellate Court to pass decree according to the justice of the case. The language used is affirmative, and the rule is further strengthened by nonobstante clauses, giving the clear impression that the intention is beneficial, so that no legal right should be denied which the appellate Court considers should be allowed within the framework of the suit. The non obstante clauses are particularly significant. The fact that the appeal is as to a part only of the decree will not, by itself, restrain the appellate Court’s powers. Here the whole decree was before the appellate Court, but the other nonobstante clause is directly relevant, for it totally avoids any condition that a party seeking the benefit of the rule should itself have filed an appeal or objection. Therefore, the mere fact of the plaintiff’s not having filed an appeal against the failure of the trial Court to grant a decree against Amanullah Kirmani would not by itself be sufficient to justify refusal to exercise the power under the rule.”

Respondent No.3 under Order XLI, rule 22, C.P.C. could support the order of dismissal, of the petitioner’s application even on the point of limitation decided against it. As provided in section 38 of the Ordinance read with rule 72 of Sind Industrial Relations Rules, 1973, the Tribunal was acting within its jurisdiction to hear and decide the point of limitation which arose out of section 25-A of the said Ordinance. However, no exception can be taken in the constitutional jurisdiction even if the Tribunal has taken an erroneous view. Reliance may be placed on Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139 and Zulfikar Khan Awan v. The Secretary, Industries and Mineral Development, Government of the Punjab, Lahore and others 1974 S C M R 530.

12. Mr.Rashid Ahmed further submitted that the enquiry proceedings for want of notice to the petitioner were invalid as was also held by the learned Tribunal. After careful study of the orders of the learned Labour Court and the Tribunal it is evidently clear that the receipt of the charge-sheet dated 17-10-1978 is admitted by the petitioner. The receipt of the second show-cause Notice, dated 16-12-1978 as to why he should not be dismissed from service is also admitted by him. The letters Exhs. A/4, A/6 and A/7, admitted to have been received by him, show that the copy of inquiry report was sent to him alongwith second show-cause notice. It is, however, contended that he did not receive the first notice of inquiry to be held on 30th November, 1978, which respondent No.3 claims to have sent by registered post A.D. on 27-11-1978 and duly received by him on 29-11-1978. The signatures on the A.D., though denied by the petitioner, have been found by both the Courts to be that of the petitioner. The petitioner has neither stated nor produced any material found to be in the envelop other than the first show-cause notice, as alleged by respondent No.3. In fact, he could not do so, as he had taken a stand that he did not receive the letter and the A.D. did not bear his signature. It is also significant to note, as observed by the learned Labour Court, that in his grievance notice he did not complain of the non-receipt of inquiry report of the dismissal order. These aspects of the matter have escaped notice of the learned Tribunal whose order on this issue seems to be based on conjectures and surmises. It can, therefore, be safely concluded that the petitioner had due notice of the inquiry. Even if the service of the first notice is clouded with doubt which, in fact, it is not, the service of the second show-cause notice alongwith inquiry report cannot be denied.

13. Furthermore, Standing Order 15(4) of the West Pakistan (Standing Orders) Ordinance, 1968 provides that

“(4) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and, the employer shall institute independent inquries before dealing with charges against a workman:

Provided that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workman employed in that establishment and the employer shal allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours.”

Thus, before any order of dismissal is made the workman concerned is to be informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him. It is amply clear from reading the order of the Labour Court that he was given the necessary notice by post as well as through newspaper “Arran” and afforded several opportunities to explain his position but he neither submitted any reply nor appeared in person. It cannot, therefore, be said at all that the action has been taken against the petitioner in disregard of law or the principle of natural justice.

14. In support of his third contention that the delay in serving notice was liable to be condoned, learned counsel for the petitioner placed his reliance on a case reported as Forbes Forbes Campbell & Company Limited through its Management, Karachi and 3 others v. Habibur Rahman and 2 others 1982 S C M R 651. In this case the notice of grievance was sent by telegram to an Officer higher than the Branch Manager, who terminated the petitioner’s service, was not regarded as a formal grievance notice envisaged by section 25-A of the Ordinance. However, in the circumstances of that case, it was held proper that the delay of five days in filing petition was liable to be excused. In the present case, the petitioner was charge-sheeted on 17-10-1978 for having remained’ absent for more than ten days without any leave since 3-10-1978. A letter of inquiry was, then, sent to the petitioner by Registered Post A.D. which, according to respondent No.3, was duly received by the petitioner but he did not participate in the enquiry on 30-11-1978 which was then conducted and completed exparte. Thereafter a second notice was issued to the petitioner on 16-12-1978 which was also published in the local daily ‘Aman’ to show cause as to why he should not be dismissed from service. By the same notice he was also directed to apper in person but the petitioner chose to remain absent. The matter was adjourned to several dates, namely 27-12-1978, 26-2-1979 and 24-3-1979 but he did neither submit any reply nor appeared in person, with the result that he was dismissed from service by order dated 5-5-1979.

15. The petitioner has failed to show us that the order of dismissal dated 5-5-1979, was passed without giving him any opportunity of being heard or that it is otherwise void ab initio or that in the circumstances of the case there is any justification to condone the delay in terms of the decision of the Supreme Court reported in 1982 S C M R 651 that the provisions of Labour laws should be construed liberally.

16. For the reasons discussed above, the order of dismissal of the application under Order XXV-A of the said Ordinance by the learned Labour Court as well as the Tribunal does not call for any interference in the constitutional jurisdiction. The petition is, therefore, dismissed but, in the circumstances, there will be no order as to costs.

M.B.A. Petition dismissed.

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