1. DECISION ' ALI MUHAMMAD BALOCH (MEMBER).--- This appeal has been preferred under section 48 of the Industrial Relations Ordinance, 2002 (repealed) by the appellant Messrs Army Welfare Sugar Mills, which was initially filed before the High Court of Sindh, Circuit Bench at Hyderabad vide Labour Appeal No,6 of 2006 and after existence of this Tribunal, the present appeal has been received from High Court of Sindh, Circuit Bench at Hyderabad, whereby appellant impugning the order dated 31-1-2006 passed by the learned Presiding Officer, Sindh Labour Court No,VI, Hyderabad in grievance Application No,167 of 2004.
2. ' Mr. Ghulam Murtaza Saryo learned counsel for the appellant and Mr. Bashir Ahmed, learned representative for the respondent worker have advanced their written arguments. After consideration of the same and perusal of the record and proceedings of the case and arguments, I have come to the following:--- Briefly the facts of the matter are that the respondent worker was employed with appellant Messrs.
3. Army Welfare Sugar Mills vide appointment letter dated 8-2-1984 and worked as Electrician in Mechanical Department. It is the case of the respondent worker that after election in 2004, management had refused to accept the CBA union and tried to eliminate the union and in such a way transferred number of workers to the alleged Nizampur Cement Project and under such threat of transfer obtained resignation from number of workers, as a poor worker cannot afford the transfer to a distinct place from his native village. It is further contended that after 2002, management had stopped the payment of production bonus which creates unrest among the workers. Some of the office-bearers i,e, President, General Secretary. And others were served with charge sheet and enquiry were conducted. It is the case of the respondent worker that he was called by senior officers of the management and got his signatures on his alleged resignation under threat of being transfer in Nizampur Cement Project. Transfer letter was issued on 19-7-2004 and on 2-9-2004 respondent worker served grievance notice against his forced resignation, as the signatures were obtained and also back dated.
4. ' Management of the appellant had asserted in its reply/statement before learned Labour Court that the resignation is voluntarily and grievance notice is time barred. Thereafter both parties have led their evidence before learned Labour Court and after conclusion of evidence, learned Labour Court had allowed the grievance petition. The point which is to be considered in appeal, basically whether the resignation was voluntary, transfer, if any is according to law and the grievance notice is within time or not.
5. ' In order to consider the resignation, we have to examine the evidence which may prove that whether it is voluntarily or forced, and if we go through the cross-examination of the management's witness namely Lt. Col. (R) Khaliqur Rehman, Deputy General Manager who had admitted certain important points, which is to be reproduced hereunder:--- "It is a fact that General Manager is the notified Manager of the factory. It is also a fact that only General Manager is authorized to appoint, terminate or take action against any worker in the actory It is a fact that upto the season 2001-02 the bonus was paid to the workers and subsequently it was not paid. Voluntarily says that agreement was entered into between the union and management by which the claim of production bonus was given up. It is incorrect that no any such agreement for giving up the claim of production bonus was entered. I cannot say if such agreement was not produced in this court. It is a fact that no any charter of demand was given to the union by the management for not allowing the production bonus to theworkers It is a fact that in the year 2003 a charter of demand was presented by the union and conciliation proceedings continuing before the Labour Authorities, but these could not succeeded. It is a fact that charge sheets were issued to the workers who were President and Vice President of the union previously. It is incorrect that allegations in the charge sheet were unproved. It is a fact that workers had protested against the action to their President and Vice President to the Town Area. ... The head office of our factory is situated at Rawalpindi. It is incorrect that all actions taken against the workers are being made on the direction of head office. Voluntarily says some actions may be taken by the General Manager himself. It is incorrect that General Manager has no power to transfer any worker from one factory to another factory. It is fact that head office did not direct us to transfer any worker from Badin to Nizampur Cement Factory. However, Nizampur Cement Factory had made demand of suitable workers for transfer. It is incorrect that the management desires to transfer the workers who were local of Badin District. .... It is a fact that prior to this no any worker was transferred to any other factory from our factory.... It is a fact that 136 workers were terminated. However, subsequently about 86 were re-employed on contract basis.... It is a fact that petitioner did not sign resignation in my presence. It is incorrect that the signature over resignation of petitioner was obtained forcibly by Muhammad Aslam Chief Engineer and others. I was not present when the petitioner tendered the resignation. It is a fact that no any transferee's worker joined the services of Nizampur Cement Factory. Probably there are 7 workers who tendered resignation due to transfer to Nizampur Cement Factory.... I do not remember if entire previous office bearers of union were terminated from service. However, it is a fact that services of the President, Vice President, General Secretary and Propaganda Secretary was terminated clue to tendering resignation and services of other office bearers and members were also terminated."
6. The above clear admissions on the points of alleged resignation and transfer, is the clear proof of the fact that practically no worker was transferred to Nizampur Cement Factory and only the office bearers and members of the union were served with transfer letters, it means that the same has been issued with mala fide intentions in order to remove the union from the scene otherwise there is no need to transfer any worker from the establishment of appellant to Nizampur. Another thing which is important to note here that both establishments are separate having two different and separate Factory Managers and no Factory Manager has superiority over another, therefore, if any, demand made by the Factory Manager of Nizampur Cement Factory (no written request produced before Labour Court) is binding upon the Factory Manager at Badin. It may be the head office had an authority to direct the Factory Manager to transfer any person from Badin to Nizampur, but it is an admitted position that no such direction was issued by the head office, therefore, the same is a lame excuse and transfer orders are only fake one just in order to remove the office bearers and active members of the union from the scene. The only objection which in view of this Tribunal is important that at the time of service of grievance notice, the period provided under section 46(1) of I.R.O. 2002 was applicable and according to which the period of 30 days available to the respondent worker to serve the grievance notice and present appellant had rightly taken objection in reply to the grievance notice, but taking into all the above facts of the matter, which reveals that no worker was transferred practically to the Nizampur Factory and mere issuance of transfer letter cannot allow the management of the appellant to take resignations in lien of transfer orders, therefore, under the circumstances of the case the period for which the grievance notice barred by only few days the same may be condoned, as the entire action of the appellant based on mala fides, hence the learned Labour Court has rightly ignored the said legal objection and rightly considered the grievance petition within time. The learned counsel for the appellant had also raised objection that the respondent worker not only submitted resignation but had also received his dues in full and final settlement and the same fact though not denied by the respondent worker, but it is the settled law that whatever received at the time of termination by the worker was in fact the dues of the post service and mere acceptance of legal dues cannot create any estoppel against creating his future service, as held in a judgment reported in 1992 SCM R 2169. Therefore, I feel no hesitation to say that the impugned order of the learned Labour Court is unexceptional and I concur the findings of the learned Presiding Officer, Sindh Labour Court No,VI, and Hyderabad.
7. Resultantly, the appeal is dismissed and appellant management is directed to comply with the order of the learned Labour Court within thirty days.