1981 PLP 862 (PLC(CS))

Wahid Bux for Appellant. Iqbal Jajri for Respondent. Date of hearing : 22nd September, 1980. This appeal is directed against a decision given by the learned VIth Labour Court, on 28th November, 1979 dismissing the grievance petition of the appellant praying that the respondent be directed to reinstate him with continuity in service and also grant him back benefits.

2. The case of the appellant is that he was employed by the res pondent as Gangman in Gang No. 36, at meeting Station; that he met with an accident on 12th November, 1977 in the course of his duties, in consequence of which 3 fingers of his right hand were cut and he had to be treated for a considerable period at the Railway Hospital; that after his discharge from the hospital, because of the injuries to his right hand, he was appointed as waterman on 16th May, 1978 and that he continued to perform the duties of a waterman till 21st April, 1979 when he was illegally removed from service, without any show‑cause notice or even any order in writing. He accordingly filed a grievance petition before the learned Labour Court claiming re‑instatement in service with the back benefits.

3. The respondent, while admitting the fact that the appellant had lost 3 fingers of his right hand in the course of his employment as a Gang man in Gang No. 36, resisted the claim of the appellant on the ground that the appellant had worked for only a short while in Gang No. 36, and thereafter had disappeared and remained absent from duty. The case of the respondent thus was that the appellant had voluntarily abandoned his employment. However, the date from which he is said to have been voluntarily absent or absconding has not been stated in the reply state ment. It was also contended in the reply statement that the appel lant was not a permanent workman or employee of the Railways.

4. The learned Labour Court took the view that the appellant had failed to establish that he was a permanent workman and that it was an admitted position that he was irregular in attendance. It also repelled the contention of the appellant that his services were terminated on account of his demanding injury benefits in consequence of the loss of 3 fingers of his right hand, since the appellant had received, as asserted by the respondent, a sum of Rs. 5,570 as injury benefits. On this finding, it dismissed the appellant's grievance petition.

5. I regret having to note that there has been some confusion on the point whether the appellant, in order to succeed in his claim was required to establish that he was a permanent workman under the Standing Orders, or a permanent employee of the Railways. In the reply statement, the respondent has merely asserted that the appellant was not a permanent workman and employee of the Railway administration. Standing Order 1 provides that a permanent workman is a workman who has been engaged on work of permanent nature likely to last more than 9 months and has satisfactorily completed a probationary period or 3 months. The contention of the appellant is that he worked as a water man from 16th May, 1978 up to 21st April, 1979 that is a period of over 11 months, and prior to that he was working as a Gangman in Gang No.

36. This contention was not specifically denied by the respondent, but the objection taken by the respondent was, as already pointed out, that the appellant was trot a permanent employee of the Railway and was engaged on temporary basis. However, the question whether the appel lant was a temporary employee of the Railways under the Rules of the Railways is immaterial for the purposes of the present appeal. Since the appellant's grievance petition was filed under clause (3) of Standing Order 12 read with section 25‑A, I. R. O., it has to be seen whether he is perma nent workman for the purposes of the Standing Orders. As the appellant appears to have been employed as waterman for a period of over 11 months, prima facie he would be a permanent workman for the purposes of the Standing Orders. However, Mr. Iqbal Jafri, the learned counsel for the respondent, submitted that the appellant was performing the duties of a waterman for only short periods at a time and as he was frequently absenting himself from his duties without permission, he cannot be considered to be a permanent workman even for the purposes of the Standing Orders. In support of his contention, he relied upon the true copy of the Attendance Register produced by Mr. Anwar Hussain, Sub‑Engineer (Way), Jhimpir. In the first place, the said true copy is not admissible in evidence as it is not a true copy of a public document, and admittedly, the original was not produced before the Court for inspection. Further more, it does not appear to be even a copy of any attendance register. It merely shows the dates on which the appellant was allegedly present, sick or on leave and the emoluments drawn by him during the period from November, 1977 to May‑June, 1979. I find it difficult to believe that the Railway administration would be maintaining a separate register or even a separate leaf in the register of a waterman who it is claimed is not even a permanent employee. It may also be mentioned that the entries in the so‑called attendance sheet admittedly do not bear the signatures or the thumb impression of the appellant. Thus no weight can be attached to or reliance placed on these entries, even if they had been admissible in the evidence.

6. It was next contended by Mr. Jafri that as the appellant had voluntarily abandoned his employment, he is not entitled to be re‑instated in service and can make no valid grievance in this behalf. There is, how ever, no tangible evidence to show that in fact the appellant had abandoned his employment, as claimed by the respondent. Neither the Head Gangman of the Gang where the appellant was employed nor any other workman in the Gang was examined to show that the appellant had voluntarily abandoned his duties. The only evidence on the point is that of the Assistant Engineer, Mr. Anwar Hussain, and the true copy of the attendance sheet. I have already pointed out that the true copy is not admissible in evidence and that further more it cannot be relied upon. A further circumstance for not relying on this document is that if the Railway administration were aware of the fact that the appellant had absconded from his duties with effect from 21st April, 1979 why the res pondent in his reply statement has failed to give the date from which the appellant was absent from his duties. As regards the evidence of Assistant Engineer, Mr. Anwar Hussain, it does not materially assist the case of the respondent because he does not appear to have personal knowledge of the matter. He is posted at Jhimpir while the appellant was employed at Meeting Station. Further more, he has based his evidence entirely on the true copy from the attendance sheet which is both inadmissible and unreliable. I am, therefore, of the view that the res pondent has failed to establish that the appellant had voluntarily abandon ed his duties, as claimed by him. It is not understood why the appellant would have agitated against the termination of his services and taken proceedings in the Labour Court if he had abandoned his service and was no longer interested in employment in the Railways.

7. The upshot of the above discussion is that in my view the appel lant is a permanent workman for the purposes of the Standing Orders and, his services appear to have been terminated in contravention of the provisions of Standing Order

12. I would, therefore, set aside the impugned decision, direct the respondent to re‑instate the appellant and allow the appeal to that extent. Since it has not been established by the appellants that he was not gainfully employed elsewhere from the date when he was wrongfully kept out of the employment, I am of the view that no case for grant of back benefits to the appellant is made out. His claim for back benefits is accordingly rejected. Appeal allowed.