1986 PLP 52 (PLC)

‑‑‑S. 25‑A‑‑Evidence Act (I of 1872), S. 114‑‑Presumption‑‑Employee denying having tendered resignation‑‑Employee addressing registered notice within days of alleged tendering of resignation‑‑Such letter having not, been accounted for by employer, initial presumption, held, would be in favour of employee that such letter if addressed properly and post prepaid would reach destination‑‑Immediate and subsequent conduct of employer following such submission of resignation would support conclusion of involuntary character of resignation. (f) Practice and procedure‑‑ ‑‑‑ Parties not represented by counsel‑‑Slight discrepancy or inconsistency, held, might remain unresolved where parties were not represented by counsel, such discrepancy or inconsistency would not affect finality on question of fact arrived at in appeal before Tribunal. Khalid Farooq Qureshi for Petitioner. Raja Muhammad Younas for Respondent No. 1 Nemo for Respondent No.

2. Dates of hearing: 10th and 24th April, 1978. This Constitutional petition by the employer is directed against an order of the Labour Court, dated 15‑8‑1975 whereby the decision given by the Junior Labour Court was set aside and substituted by an order holding that the resignation said to have been submitted by the respondent employee was forced out of him and had not the effect of terminating his employment with the petitioner with a consequential direction that he should be re‑instated and paid the back benefits.

2. The facts of the case disclosed that a domestic inquiry into a serious allegation of breach of discipline in the establishment was taking place against the respondent‑employee when he is said to have tendered a written resignation also praying that the required one, month's notice be waived and his accounts be cleared forthwith. The reasons given for such an unusual resignation was the family circumstances. Soon thereafter, within about a month he filed an application under section 25‑A of the Industrial Relations Ordinance before the Junior Labour Court making allegations that the thumb‑impression existing on the letter of resignation and attributed to him was not his and that the resignation had been forced out of him. The Junior Labour Court held as a fact that the witnesses produced in such cases were not reliable but partisan and it was recorded that "I have, therefore; been left to dig out the fact from the circumstances which led to the grievance of the petitioner". He then observed that the attitude of the employee and his witnesses towards the employer was most disgraceful and objectionable and that the purpose of the proceedings was to claim re‑instatement with a view to humiliate the employer and the conclusion reached was "What I have read between the lines is neither the petitioner nor is friends are interested in his employment but they want to insult and humiliate the employer and for this purpose they have chosen the present course. I refused to become a stooge in the hand of such professional litigants. This attitude of the petitioner is enough to prove that he himself resigned on 3‑5‑1975. After 26 days the C.B.A. Union instigated him to file the case so that they may achieve their ends". On appeal the Labour Court examined at great length the possible motivation of the employer and the employee and after an extensive survey recorded the conclusion "The probabilities are that the resignation was not given voluntarily but it was obtained by show of force."

3. It has to be noted at once that the controversy brought to this Court in the Constitutional jurisdiction relates to fact and a fact relatable to the appraisal of evidence led before the Court. The Junior Labour Court has rejected the evidence and in an inquiry an adjudication has relied upon the conduct of the parties during the course of the litigation for recording a finding with regard to a past event. On no principle of appraisement of evidence or adjudication of causes or of determination of issues such a course can be justified. The Labour Court has also at times gone into the domains of conjectures and probabilities. Nevertheless, the finding of fact recorded by a Court having exclusive jurisdiction does not suffer from any jurisdictional error as long as it is not completely fanciful, based on no evidence or is against the weight of evidence. In this case I do not find that the final order suffers from such a defect as may justify interference in the Constitutional Jurisdiction.

4. There are three strong factors which on the judicial plane justify the conclusion arrived at by the Labour Court. Firstly, when a departmental inquiry is actively being pursued by the employer against the employee, the tendering of resignation on account of family circumstances would appear to be incongruous. The pressure of inquiry itself would be a factor which would affect the voluntary character of a resignation then 'tendered. There should, therefore, be greater satisfaction obtained in such a situation if a resignation its voluntary or involuntary character is in issue. Secondly, the resignation is not' written in the hand of the employee. Who is the author of it none knows. It is also not shown that the employee was literate person who could read and understand what was written. His signatures is no indication of his literacy. He denied the thumb‑impression on the resignation. It was not proved by the employer to be his. Thirdly, there was evidence in the form of Exh. P.A. of a registered notice having been sent the same week, as a matter of fact within days of the so‑called submission of the resignation. This letter has not been accounted for and the initial presumption would be that if it is addressed properly and post pre‑paid it reached its destination. Such a service of notice is not deficient in requirements even under the Civil Procedure Code. None of the employers' witnesses has said anything about this notice. The immediate and subsequent conduct of the employee following such a submission of the resignation would also support the conclusion of involuntary character of the resignation.

5. The employer has given the impression that the case of the employee with regard to the execution and completion of the resignation was so inconsistent intrinsically that it had to be rejected. It does not appear to me to be the case and slight discrepancy or inconsistency where parties are not represented by counsel may remain unresolved.

6. I find that it is not a fit case for interference in the constitutional jurisdiction and the petition is dismissed. The parties are left to bear their own costs. A.A. Petition rejected.