1976 PLP 458 (PLC)

(b) Industrial dispute- -- Workman's petition for re-instatement contested on basis of alleged resignation-Resignation disputed by workman as a fake docu ment-Resignation alleged to have been sent from home after proceed ing on leave and personally-No corroborating circumstances or evidence produced-Receipt of outstanding dues at time of proceeding on leave, held, cannot be evidence in support of resignation-Alleged resignation, in circumstances, held, did not contain any evidentiary value-Re-instatement, in circumstances, awarded-Industrial Relations Ordinance (XXIII of 1969), S. 25-A. M. L. Shahahi for Appellant. Sher Muhammad Malik for Respondent. This appeal is directed against the order passed by the Junior Labour Court dated 28-1-1974, whereby the application filed by Muhammad Bashir under section 25-A of the Industrial Relations Ordinance, 1969, was dismissed on the ground that the application is time-barred and also that the applicant has resigned from the service of his own accord.

2. Applicant was working with the respondent concern as Weaver since the year 1967. On 3-4-1973, he applied for one month's leave, which was granted. He again applied for another month's leave, which was also sanctioned. When second month expired, he did not resume duty, but he sent an application on the ground of illness. Up to the month of October he did not receive intimation. Finally he resumed duty on 3-17-11473 but he was not allowed to resume. On 4-12-1963, he sent grievance application to the Employer. It was also not replied and thereafter he filed application in the Court on 3-1-1974.

3. The learned Court has taken the view that the applicant had to file the application within two months of the date of the cause of action, and therefore if the applicant was finally refused to resume duty on 3-11-1974, the application is still filed in the Court on 10-1-1974. Apparently the learned Court has taken the erroneous view. If the record is examined, it will appear that plaint does not bear ice cute of presentation nor the party has shown the date of presentation in the plaint. So the date of presentation is to be judged from the diary, where the diary of the Court's record shows the date of presentation on 3-1-1974. The learned Presiding Officer, it seems, overlooked this aspect. However, I am of the view that the applicant had still sufficient time to file application. It must be noted that the aggrieved party had three months' time within which he had to present the notice to the Employer and thereafter fifteen days for the Employer to intimate and he had two months more for filing petition under subsection (4) of section 32-A. The learned Court has also taken, in my view, a wrong view to rely on subsection (6), which is in the different context Section 25-A also speaks in respect of any right secured or guaranteed. If the applicant is permanent workman under the Standing Orders Ordinance, 1968 when obviously the Employer has raised no plea that the strength is below 49 the right if infringed, which otherwise stands secured to the worker, he would come under section 25-A. In my view, subsection (6) can only be read if the workman comes under the definition of I. R. O., 1969, where his right i is not under the provisions of Standing Orders Ordinance, 1968, but dismisses as the workman from the employment in any other capacity within the definition of section 2 of

1. R. O , 1969, where he can challenge the dismissal or termination. I believe that this Ordinance was inserted to safeguard the interest of workman in such eventuality.

4. It is next contended that the applicant has resigned from home, b sending the letter to the Employer, which is dated 30-6-1973. It is also in the evidence that it was not presented personally. This letter of resignation is contested by workman as a fake document, admitting the signature but disowning the contents. As far as the fact that the applicant sent the application on the ground of illness, this position is conceded by the Emp loyer, if para. 5 of the reply is examined. This reply statement is nor only vague but certainely definite on this admission of fact. Further, if para. 5 is examined from critical angle, it will be reen that the Employer himself admits that the workman had already cent application up to October 1973. It sounds, therefore, strange how the letter of resignation, which is also not presented by the worker personally, can be the basis of reliance, when neither the envelope of registration is produced nor there i5 any convincing position taken by the Employer, when on one hand, he shows the resignation and on the other hand, admits that the applications were received. The contention of the Employer that he remained absent from duty, is another question to con sider, for which, he certainly was competent to put him on charge-sheet, B when Order 15 not only refers for the absence of more than ten days but also for the absence from work, whether the applicant resigned from service, is the question for consideration. I am certainly of the view that this docu ment of resignation cannot be the evidence of reliance, even in the least.

5. Lastly, it is contended that the workman received advance of Rs. 700 as the clearance payment of his dues at the time of leaving. It is hardly the matter for comment that even if the worker leaves for home and receives dues, outstanding against the firm, this clearance cannot be the evidence of resigna tion. It will be too far to stretch the interpretation in this regard unless the evidence of high order is shown that the resignation was voluntary and he did present the resignation personally to which there is corroboration of the circumstances by means of payment. Finally, it is criticized that he took advance Rs. 700 as a loan. I find no entry in the Register maintained. It is simply the voucher produced to show that he took advance and this document has been disowned. At this stage, I will refrain from comment ing on this aspect, which deals with the financial liability. If it is disowned it can be compared by an Expert. But as I am reinstating him on the ground that it was not the resignation, then it is for the employer to charge-sheet him or not on the misconduct of absence, but certainly at present, the cage calls for his re-instatement when the refusal to return him to duty was illegal and illegal termination. As regards benefits of pay, I cannot allow him. It is for the Employer to decide. If it is found that his absence from leave on the ground of illness was a justification of law, to which he was entitled, be will pay him, but if be finds that he has committed misconduct, he will pay him on the conclusion of action of enquiry. But his other benefits of future continuance will not be affected. Accordingly the order is set aside and appeal is allowed.