1. Granted.
' By this appeal under section 47(3) of the Industrial Relations Ordinance, 2002, order dated 20-12- 2003 passed by Sindh Labour CourtNo,VI, Hyderabad, in Application No,29 of 2001, whereby the Court has ordered reinstatement of respondent in service with back-benefits and further awarded Rs,5000 as cost of proceedings, has been challenged by the petitioner.
2. Briefly stated, the relevant facts of the case are that on 29-6-2001 respondent filed an application under section 25-A of Industrial Relations Ordinance, 1969 against the appellant before the Labour Court No,VI, Hyderabad, mentioning therein that he was appointed in the appellant Mills as helper about one and half year ago and later on due to his good performance he was promoted as Assistant Fitter. The Management of the appellant Mills was not allowing formation of Trade Union, while the respondent had been agitating so. The respondent was also not allowed permissible leaves by the Management of appellant and was threatened that in case he goes on leave, he will be dismissed from service. It was further stated that the appellant had obtained signatures of respondent on five/six blank papers at the time of his appointment. On 20-4-2001 when the respondent reached at the Mills for his duty, he was not allowed joining on the pretext that some inquiry is pending against him. In such circumstances, respondent made written complaint to the Labour Officer, TalukaKotri, District Dadu on 29-4-2001, whereupon Manager, Administration from the appellant Mills informed the Labour Officer on telephone that the respondent has resigned from his service and photo copy of such resignation was sent to the Labour Officer, who, therefore, vide his letter dated 19-5-2001 advised the respondent to approach the Court of law for redress of his grievance. On 24-5-2001 respondent served grievance notice to the appellant and on their failure to redress the grievance, thereafter he filed his application under section 25-A of Industrial Relations Ordinance, 1969 before the Labour Court.
3. In their written statement appellant denied the allegations of therespondent/workman about his wrongful dismissal from service and took the plea that he had voluntarily resigned from service, therefore, his grievance application was not maintainable and he was also not entitled for reinstatement in service.
4. At the stage of evidence, respondent Muhammad Zahid filed his own affidavit-in-evidence before the Labour Court, which was accompanied with some relevant documents. This witness was cross-examined by the learned Counsel for the appellant. From the side of appellant their Manager Syed Nawazish Ali Shah filed his affidavit-inevidence, whereafter he was cross-examined by the representative of the respondent.
5. The learned Sindh Labour Court No,VI, Hyderabad after hearing the arguments of learned Counsel for both the parties came to the conclusion that respondent had not resigned but he was wrongfullydismissed from service by the appellant and consequently it allowed the application of the applicant in the terms as noted above.
6. Mr. FasahatHussainRizvi, learned Counsel for the appellant, contended that the impugned judgment of the Labour Court No, VI, Hyderabad suffers from misreading of evidence as the Labour Court has failed to take notice of the fact that the respondent has himself produced the copy of his resignation letter before the Labour Court, which has proved the fact that not only he had voluntarily tendered his resignation to the appellant but this fact was all along within his knowledge. Learned Counsel also challenged the impugned judgment with reference to section 46(5) of the Industrial Relations Ordinance, 2002 and contended that in view of this newly inserted proyision of law in the Ordinance of 2002, which was not available in the earlier I.R.O of 1969, Labour Court was not competent to order reinstatement of respondent in service but it could have only awarded compensation as contemplated in subsection (5) of section 46. On facts, learned Counsel, however, did not dispute that the appellant had neither produced the alleged original resignation tendered by respondent before the Management of the appellant nor any other witness was examined by the appellant to prove that such resignation was at all submitted by the respondent.
7. On the other hand Mr. MahmoodHussainSiddiqui, .Learned Counsel for the respondent, contended that the impugned order of the Labour Court is a speaking and well-reasoned order, which is based on proper appreciation of evidence, thus it needs no interference by this Court.
Learned Counsel further contended that insertion of subsection (5) to section 46 has given an additional option to the Labour Court that even in a case where it finds dismissal of a workman to be wrongful, still in appropriate cases his reinstatement can be refused and in lieu thereof compensation equivalent to not less than twelve months and not more than thirty months of his basic pay last drawn and the house rant, if any, could be awarded to a workman. He contended that this newly added provision has in no manner denuded the Labour Court of it's powers for ordering reinstatement of a workman in service with back-benefits or otherwise.
8. I have carefully considered the arguments advanced by the learned Counsel and perused the pleadings as well as evidence adduced by the parties before the learned Labour Court. Before proceeding further it will be appropriate to mention here that in the instant case when the respondent had denied the fact that he had tendered/submitted any resignation to the appellant and had also made such statement on oath before the Court, the burden of proof that any such resignation was tendered by him, had squarely shifted on the appellant Mills, which they had to discharge in accordance with law. But to meet this situation the appellant even did not bother to place on record the Original resignationletter purportedly bearing the signature of the respondent.
Not only this, but even no officer of the appellant Mills was examined by the appellant who could depose that respondent has handed over such resignation to him. It has also not been disputed by the learned Counsel for the appellant that the purported resignation letter, photo copy whereof has been placed on record by the respondent himself, is not in the handwriting of the respondent. In such circumstances, Labour Court has rightly held that the tendering of resignation by the respondent has not been proved by the appellant. The submission of Mr. FasahatHussainRizvi that as the respondent himself has submitted photo copy of resignation in Court, it is sufficient proof of the fact that he has resigned voluntarily, is absolutely misconceived and ill-founded. It has come on record that the photo copy of resignation was sent by the appellant to the Labour Officer Kotri after the complaint of respondent before him and from there the respondent could lay hand on this document. Thus mere production of Photostat copy of resignation does not, in any manner, prove that the respondent had actually resigned from his service. The other submission of Mr. FasahatHussainRizvi with reference to interpretdtion of subsection (5) of section 46 is also without any force. A comparative reading of section 46 of I.R.O., 2002 with corresponding section 25-A of the Industrial Relations Ordinance, 1969 would show that in the Industrial Relations Ordinance, 1969 the Labour Court while dealing with the grievance application of a workman had two options, either to order reinstatement of a workman in service with or without back-benefits or to dismiss his application and refuse his reinstatement, but under the newly enacted Industrial Relations Ordinance, 2002, a third option has also been provided with the addition of sub-section (5) to section 46 that in a case where the Labour Court finds termination of service of a workman to be wrongful, still reinstatement can be refused in appropriate cases and he can be compensated in the terms as specified in this provision of the law. Availability of such additional option to the Labour Court fOr awarding compensation in lieu of reinstatement of a workman in service cannot under any 'circumstances justify an inference that on insertion of such provision in I.R.O., 2002 the Labour Court has been stripped of it's powers to order reinstatement of a workman in service. Thus, it is clear that in the instant case reinstatement of respondent in service with back-benefits ordered by the Labour Court is duly warranted by law and does not require any interference in this appeal.
9. For the foregoing reasons, this appeal is dismissed in limine along with listed application at serial No,3.