1978 PLP 446 (PLC)

‑‑ Re‑instatement‑‑Back benefit‑Termination purportedly due to absence without leave‑Record not supporting allegation of absence but indicating that workman refused duty despite grievance notices‑. Back benefits, in circumstances, rightly allowed by Labour Court while awarding re‑instatement‑‑Claim for overtime nit established‑ Such claim, held, should not hove been allowed. This appeal has been filed against the order of the Labour Court re‑instating the respondent with full back benefits from lot August 1975 and overtime allowance on an application made by him under section 25‑A, I. R. O.

2. The respondent was in the permanent employment of the appellant and was working as Typist since July 1974. According to the respondent, he applied for leave for 18 days w. e. f. 1st August 1975 for the purpose of examination and leave was sanctioned to him. After availing of the leave he resumed his duties on 19th August 1975. But on 2nd September 1975 he was not allowed to resume his duties without assigning any reason as he had made demand for the salary for the month of August and overtime. He, therefore, sent a grievance notice dated 8th September 1975 but no reply was received. He sent another grievance notice in October 1975 and a reply was received on 13th November, 1975 calling up‑in him to resume his duties. So he resumed the duties on 15th November 1975 and worked till 1st December 1975. But again on 2nd December 1975 he was not allowed to work. So he sent a grievance notice en 12th December 1975 but no reply was received. Consequently, an application under section 25‑A, I. R. O. was made on 20th January 1976.

3. The application was resisted by the appellant and it was pleaded that the leave applied for by the respondent was refused on account of pressure of work and, therefore, he withdrew his application. Despite that he remained absent for 18 days and reported on 19th August, 1975. On the same day he demanded the salary for July, 1975 which was duly paid and after receiving the amount he left the office and never returned. In November, 1975 a notice was received from him and it was replied by letter dated 11th November, 1975 directing him to resume his duties as his service had not been terminated. In pursuance of that letter he appeared and when he was asked to resume his duties he left the office saying that he would like to set It advice from his advocate and never came back. It was alto pleaded that Standing Orders Ordinance was not applicable as the appellant did not employ 20 or more persons. It‑ was denied that the respondent had ever worked overtime.

4. Evidence was tendered by both the parties. On the assessment of the evidence the Labour Court rejected the contention raised on behalf of the appellant and allowed the application ordering re‑instatement with all the benefits as claimed.

5. The learned counsel for the appellant did not question the order of re‑instatement as the respondent had never been removed from service, but be pressed that since the respondent had remained absent he was not entitled for any salary for the period of his absence. According to him, the application for leave was refused and, therefore, the applicant did not work from let August, 1975 till March, 1976 when he resumed the duties after the order of re‑instatement was passed by the Labour Court.

6. I have given my anxious consideration to the contentions raised on behalf of the parties and I am of the view that the appellant has failed to establish that the leave was refused or the respondent bad withdrawn his application. No documentary proof has been furnished. The appellant did not care to produce either the leave application or the application for withdrawal of leave. Even the order for the refusal of the leave was not produced. The learned Presiding Officer had rejected the plea taken by the appellant and I see no reason to disagree with him. Since the material documents have been suppressed presumption arises against the appellant.

7. As regards the alleged continuous absence of the respondent the Labour Court came to the conclusion that there was no truth in the allegation made by the appellant as in spite of the notices sent by the respondent, no reply was sent and no action for such a long absence was taken against the respondent. I am inclined to find force in the reasons given by the learned Presiding officer. He has fully discussed the various allegations and counter allegations made by the parties and no exception can be taken to the view entertained by him. It is ridiculous to suggest that the appellant allowed the respondent to go unpunished despite his absence without leave for such a long period. The attendance register, which was produced was rejected by the Labour Court on the ground that it was not properly maintained. I have been the register and I sea no reason to take a different view. The evidence tendered on behalf of the appellant is unacceptable. The respondent may have made certain false statements but in the main the allegations made against him by the appellant have not been established. I am, therefore, inclined to agree with the a learned Presiding Officer that the appellant did not allow the respondent to resume his duties prior to the impugned order, except for a short period during November, 1975.

8. It was next urged on behalf of the appellant that the application was time‑barred, but there is no force in this contention as well, as according to the respondent he was allowed to resume his duties for the second half of November 1975. The application under section 25‑A, I. R. O. was made on 20th January 1976, and, therefore, it was within two months of the cause of action. Consequently, the question of limitation does not arise.

9. So far the question of overtime allowance is concerned, the respondent failed to establish it and he was wrongly allowed by the Labour Court. In the applications dated 8th September, 1975 and October 1975 the appellant had claimed overtime for 15 days only, whereas in the grievance notice as well as in the application made under section 25-A, I. R. O. he inflated the claim for a period of 4/1/2 months.

10. In the result the claim for overtime is rejected and with the modification the appeal is dismissed. Appeal dismissed.