1992 PLP 657 (PLC)

MAMOON KAZI, J.

The petitioner has called in question the order passed by the learned Labour Appellate Tribunal dated 29-5-1991 ordering reinstatement of the respondent in services of the petitioner with back benefits.

2. The respondent filed an application under section 25-A of the I.R.O. before the learned Sixth Sindh Labour Court, Hyderabad alleging that he had been employed by the petitioner as a typist with effect from 25-2-1987 and was a permanent employee. The case of the respondent was that on 23-12-1987 he was stopped at the gate by the petitioner alleging that the former had issued form "B-2" in respect of a workman named Abdul Ghani who had a dispute with the management. It had also been alleged against the respondent that he had failed to attend the meeting called by the Labour Officer of the petitioner.

3. The petitioner while denying the aforesaid allegations took a plea that the respondent had been engaged by it on daily wages as a casual worker and consequently, the claim of the respondent that he was a permanent workman was denied. The petitioner also denied that the respondent had been stopped at the gate as alleged by him because, according to the petitioner, the respondent had himself abandoned his employment from 23-12-1987.

4. Although the main question before the learned Labour Court was whether the respondent was a permanent workman but it appears that in this regard hardly any evidence was led by the petitioner to support his said contention. However, at the request of the respondent, the Accountant of the petitioner was examined by the learned Labour Court as a witness for the respondent who stated that the respondent was a casual worker and had been appointed by the petitioner on daily wages. The respondent was also stated to have been appointed by the petitioner on 9-8-1987 and the letter of his appointment was produced before the Labour Court as Annexure R/1 which supported the witness's contention. The petitioner although, admitted to have signed the said letter, however, according to him, the letter was signed by him without reading its contents. Be that as it may, on the basis of the evidence produced before the Labour Court, the learned Labour Court arrived at a conclusion that the petitioner was not a permanent workman. The grievance petition of the respondent was dismissed as the Labour Court was not impressed by the respondent's case. The respondent being aggrieved by such order appealed before the learned Labour Appellate Tribunal which although held that the respondent was a temporary workman but it reversed the findings of the learned Labour Court on the ground that the respondent being workman was entitled to order in writing stating reasons for his removal from service as required by Standing Order 12(3). Consequently, the respondent was ordered to be reinstated in service with back benefits.

5. Before this Court, the main contention of Mr. Abdul Ghani Khan; learned counsel for the petitioner has been that the respondent had himself abandoned his employment on 23-12-1987 and consequently, he had no cause of action to file a grievance petition before the learned Labour Court. The second contention was that the respondent was not a permanent workman but was only a casual workman having been employed on daily wages and consequently, he was not entitled to be reinstated in service.

6. Since both the learned Labour Court as well as the learned Labour Appellate Tribunal have come to a conclusion that the respondent was not a permanent workman, it is not necessary for us to go into such question once again. The findings of the learned Tribunal below are based on the evidence which was produced by the parties respectively before the learned Labour Court and on the basis of such evidence the learned Labour Appellate Tribunal has arrived at a conclusion that the respondent was a temporary workman. However, according to the learned Labour Appellate Tribunal, the respondent was nevertheless entitled to an order in writing stating reasons for the termination of his services as required by Standing Order 12(3), as has been pointed out by us earlier. No doubt, Standing Order 12(3) requires an order in writing as has been held by the learned Appellate Tribunal, but the main question which both the learned Tribunals appears to have overlooked is the question, whether the respondent had himself abandoned his employment as alleged by the petitioner or whether he had been stopped at the gate as alleged by him in his petition before the learned Labour Court. It is pertinent to point out that onus in this regard was clearly on the respondent to prove that he had been stopped by the petitioner. No doubt, the respondent in his evidence has stated that he was stopped on 23-12-1987 but this allegation has been controverted by the petitioner's witness Gul Sher Ahmed, according to whom, the respondent had himself stopped reporting for work from the said date. It is pertinent to point out that although, the petitioner's witness was not cross-examined by the respondent's counsel, on this point, the respondent was cross-examined by the petitioner's counsel. Since the onus to prove that the respondent had teen stopped or that his services had been terminated by the. petitioner was clearly on him, there was no substantial evidence produced by the respondent in this regard because so far as the oral evidence given by the parties is concerned, there was only the word of the respondent against that of the petitioner. This aspect of the matter appears to have been clearly over looked by the learned Appellate Tribunal. Standing Order 12(2) neither places an obligation upon the employer in regard to service of notice on the workman before termination of his services nor does it place any obligation upon the workman to give such notice to the employer. Consequently, if the respondent himself stopped reporting for duty to the petitioner, his services would be deemed to have come to an end from such date. Since there was no evidence to show that the services of the respondent had been terminated by the petitioner as pointed out earlier, the learned Appellate Tribunal could not have reinstated the respondent in service because under the circumstances, as just enumerated by us, the respondent would have no cause of action against the petitioner for which he could raise any grievance. before the Labour Court. We are, consequently, of the view that the order passed by the learned Appellate Tribunal is erroneous on the face of it.

7. In the result, we allow this petition and quash the order dated 29-5-1991 passed by the learned Appellate Tribunal. The parties are left to bear their own costs.