PLJ 2019 Tr.C. (Note) 156
[Labour
Appellate Tribunal Balochistan,
Present: Zahoor Ahmed Mengal, Member
MUHAMMAD MALIK--Appellant
versus
CHIEF EXECUTIVE & 6 others--Respondents
Labour Appeal No. 18 of 2017, decided on 20.9.2017
Balochistan Industrial
Relations Act, 2010--
----Ss. 41 & 55(3)--Appellant was appointed in QESCO--Application for promotion--Grievance notice--Grievance application--Direction to disposed of grievance application in accordance with law--Filling of contempt application--During pendency of contempt application grievance application was decided--Withdrawal of contempt application--Filling of second grievance application--Dismissed--Challenge to--First grievance application of applicant/appellant dated 11-02-2016 and second application of applicant/appellant dated 27-06-2016 examined, contentions of both grievance applications as well as parties are same with similar prayer clause. Since issues being same between same parties has already been decided by Trial Court vide judgment dated 30-04-2016, thus second grievance application is apparently hit by Section11 CPC (Resjudicata) as same matter between same parties on same issue has been decided and attained finality by competent Court--Nutshell of above discussion is that judgment impugned herein passed by learned Trial Court dated 12-06-2017 is well reasoned and in accordance with law, therefore, maintaining same, appeal in hand is hereby dismissed as being meritless, however, respondents No. 1 and 2 are directed to consider grievance application of appellant in light of judgment dated 30-04-2016 passed by learned Trial Court strictly within a period of twenty (20) days, otherwise appellant is at liberty to knock the door of competent forum for non-compliance of directions of Court--Appeal was dismissed.
[
2003 PLD 484, ref.
Civil
Procedure Code, 1908 (V of 1908)--
----S. 11--Res-judicata--A relief which is or which can be claimed and prayed for by a litigant through one recourse to law cannot be claimed or prayed for again by same litigant before same forum.
[
Mr. Mudassar Nadeem, Advocate for Appellant.
Mr. Farooq Anwar, Advocate for Respondents No. 1 and 2.
Mr. Abdul Wadood and Ishaque Notezai, Advocates for Respondents No. 3 to 7.
Date of hearing: 20.9.2017.
Order
This appeal has been filed against the Judgment dated
12-06-2017 passed by the Presiding Officer, 1st
2. Brief facts of the case are that the appellant is diploma Holder (DAE) and was appointed in Respondent No. 1's company in the year 2001 as LS-I. During service the applicant did various trainings.
The appellant passed B-Tech and thereafter got admission in B-Tech Honors in the same University and respondent issued him NOC and study leave and appellant passed B-Tech Honors in the year 2015.
Thereafter, the appellant applied for promotion on 20-11-2014 on the ground that other juniors and simple B-Tech passed employees i.e. Respondent No. 3 to 7 and another junior one promoted by depriving the appellant.
Being aggrieved from the act of Respondent No. 1 and 2 the appellant issued grievance notice on 12-01-2016 to the Respondent No. 1 but the same was not replied, where applicant filed grievance application under Section 41 of BIRA 2010 before Trial Court.
Thereafter, the Trial Court while disposing the application directed the respondent to dispose of the grievance notice of appellant/applicant but the same was not disposed by Respondent No. 1 and 2, therefore, the appellant filed contempt application against Respondent No. 1 and 2 before Trial Court, but during pendency of contempt application the grievance notice of appellant was decided by the Respondent No. 1, thereafter, appellant/applicant withdrawn the contempt application and filed grievance application.
3. The Respondent No. 1 and 2 contested the application of applicant/appellant by means of filing Written Statement.
4. The Learned Trial Court after hearing the parties dismissed the application of applicant/appellant. Hence instant appeal.
5. Counsel for the appellant Mr. Mudassar Nadeem, Advocate contended that the Trial Court passed the judgment impugned herein dated 12-06-2017 wherein Section11 of CPC was misinterpreted and wrongly dismissed the grievance application of the appellant.
He further stated that in first round of litigation the respondents No. 1 and 2 were only party while in case in hand Respondent No. 3 to 7 have also been arrayed as party, therefore, Section11 CPC does not attract in this matter.
6. On the other hand Mr. Farooq Anwar, Advocate learned counsel for the respondents No. 1 and 2 and Mr. Abdul Wadood and Mr. Ishaq Notezai, Advocates for respondents No. 3 to 7 strongly opposed the contention of the counsel for appellant.
7. Record of the case perused which shows that the appellant on 11-02-2016 filed a petition before the Trial Court which was disposed of on 30-04-2016 by the Trial Court, the operating portion is as under:
"The
application filed by applicant under Section41 of Balochistan
Industrial Relations Act, 2010 is dispose of with the direction to the
respondents to look into the matter and decided the grievance application of
the applicant in accordance with the Law within the period of one month after
receipt of this Judgment."
8. The application filed by the applicant/appellant under Section 41 of BIRA 2010 was disposed of with the direction to the respondents No. 1 and 2 to look into the matter and decide the grievance application of the applicant/appellant in accordance with law within a period of one month, but the Respondents No. 1 and 2 failed to act upon the judgment of Trial Court dated 30-04-2016.
Thereafter, the applicant/appellant filed a contempt application against the respondent of the then case before the Trial Court which was subsequently withdrawn on the assurance of the respondents No. 1 and 2, however, respondents No. 1 and 2 once again failed to comply with the direction passed by the Trial Court vide judgment dated 30-04-2016.
That the appellant filed 2nd grievance application before the Trial Court on 27-06-2016 and the learned Trial Court after hearing the parties and evaluating the relevant documents passed this judgment impugned herein dated 12-06-2017 wherein dismissed the 2nd grievance application of the applicant/appellant by declaring the application of the appellant as barred by "Resjudicata" under Section11 CPC.
9. First grievance application of the applicant/appellant dated 11-02-2016 and second application of the applicant/appellant dated 27-06-2016 examined, contentions of the both grievance applications as well as the parties are same with similar prayer clause. Since issues being the same between the same parties has already been decided by the Trial Court vide judgment dated 30-04-2016, thus the second grievance application is apparently hit by Section11 CPC (Resjudicata) as the same matter between the same parties on same issue has been decided and attained finality by competent Court thus no second suit can be entertained on the same footings between the same parties mare on the base of impleading of some new respondents.
10. It will also be helpful to quote here the essential principle of Resjudicata that,
"a relief which is or which can be claimed and prayed for by a litigant through one recourse to law cannot be claimed or prayed for again by the same litigant before the same forum."
The principle of "Resjudicata's" aim is to save the Court and parties from being vexed by a litigant sequentially for the same relief which has been claimed for by him in earlier action.
11. In matter in hand five necessary conditions for application of Resjudicata i.e.
i. The matter directly and substantially in issue in the
subsequent suit must be the same matter, which was directly and substantially
in issue actually or constructively informer suit;
ii. The former
suit must have been a suit between the same parties or between the parties
under whom they or any of them claim;
iii. The parties
as aforesaid must have litigated under the same title in the former suit;
iv. The Court
which decided the former suit must have been a Court competent to try the
subsequent suit in which such issue is subsequently raised; and
v. The matter
directly or substantially in issue in subsequent suit must have been heard and
finally decided by the Court.
are there in the matter.
12. The august Supreme
Court of
"Matter
directly and substantially in issue in the subsequent suit as well as in the
present suit being the same was hit by provision of S-II CPC and thus barred by
law"
13. The nutshell of the above discussion is that the judgment impugned herein passed by the learned Trial Court dated 12-06-2017 is well reasoned and in accordance with law, therefore, maintaining the same, the appeal in hand is hereby dismissed as being meritless, however, Respondents No. 1 and 2 are directed to consider the grievance application of the appellant in light of judgment dated 30-04-2016 passed by learned Trial Court strictly within a period of twenty (20) days, otherwise the appellant is at liberty to knock the door of competent forum for non compliance of the directions of the Court.
14. The parties are left to bear their own cost.
15. The copy of order along with original record of Trial Court be sent to Trial Court. Case after completion be consigned to record.
16. GIVEN under my hand and seal of the Court on 20th September, 2017.
(Y.A.) Appeal Dismissed