' JUSTUCE (RTD.) HAFIZ ABDUL REHMAN ANSARI (CHAIRMAN).--- The appellant has filed the instant appeal before this Tribunal against judgment/order dated 25-4-2014 passed by learned Presiding Officer, Punjab Labour Court No,II, D.G. Khan, whereby Learned Presiding Officer dismissed the grievance petition of the appellant. The concluding Para of impugned judgment is reproduced hereunder:--- "If one goes through the contents of the :petition, name of petitioner is Akram Ali. No date of his appointment has been mentioned either in the petition or in his statement as PW-1. No appointment letter has been produced. It is not believable that petitioner was working with the respondent for such a long period but was not issued any appointment letter despite the fact that he was being paid salary regularly. Not only that, as per his own document/degrees/ certificates his name is Akram Ali but the name in P.10, P-11 and P-12 is that of Muhammad Akram and so far as his copy of I.D. Card P-3 is concerned, it do not contain the name of his father. Not only that, it contains the name as Mohammad Akram. It has never been pleaded anywhere that he has been working with the name of Muhammad Akram. In so far as contention that his sister Tahira Shakil and Shagufta Kanwal got the admission on concessional rates, the copies of their applications P-16 and P-17 were produced in the statement of learned counsel for the petitioner, as such, were never subjected to cross-examination. Even said alleged applications were not got confronted to RW-1.
As such, are of no use. As per the law laid down in 2001 PLC 460, since the relationship of employer and employee was denied by the respondent, the burden of proving heavily lie on the petitioner, which he has miserable failed to discharge. Also refers 2009 PLC 281. Accordingly application is dismissed."
2. The brief facts of the instant case are that according to stance of the appellant, he served in the respondent-institution as an English teacher. He was appointed there on 1-7-2003. He had been performing, duties honestly, diligently. The dispute arose between the respondent and appellant with regard to monthly salary. Finally, on 11-5-2012 the gate of school was closed for him; he served a grievance notice on 3-8-2012 which remained unfruitful. Thereafter, appellant filed grievance petition before Learned Labour Court No,II, D.G. Khan.
4. The respondent-department filed written statement before Punjab Labour Court No,II, D.G. Khan by raising some preliminary objection regarding jurisdiction of Labour Court and further raised objection that no person with the name of Akram Ali has ever served as an English Teacher in the respondent-Academy. On facts, all the allegations were rebutted.
5. Learned Presiding Officer recorded evidence of both the parties. Appellant entered in the witness-box as PW-1 and submitted documents Exh.P.1 to Exh.P.17 in support of his grievance petition. On the other hand, Muhammad Ayoub appeared as RW-1 in support of pleadings of respondent.
6. Learned Presiding Officer, Punjab Labour Court No,II, D.G. Khan dismissed the grievance petition of the appellant vide judgment/ order dated 25-4-2014. Hence instant appeal filed by appellant before this Tribunal.
7. Learned counsel for appellant submits that learned Labour Court dismissed the grievance petition on the whimsical ground that appellant was never employee of respondent-institution.
Learned counsel submits that findings of Learned Labour Court are based on misreading and non- reading of evidence. Learned counsel submits that Learned Labour Court did not consider "Employee Card" which was issued by the Principal of the institution which is placed on the record Eh.P.3. Learned counsel for appellant presented another card of another employee namely Muhammad Sajjad of the same institution issued to him is also similar "Employee Card" as was issued to appellant Muhammad Akram. Learned counsel further submits that institution inscribed/incorporated name of appellant Muhammad Akram instead of Akram Ali son of Ghulam Hussain intentionally. Learned counsel submits that appellant taught 8 years in the respondent- institution and dispute between the institution and appellant occurred on the payment of salary as institution has been showing receipt of salary Rs,20000 by appellant while he was paid Rs,12000.
Learned counsel drew attention Exh.P.8 wherein name of appellant is written as Akram Sb. Wherein not written Akram Ali nor Muhammad Akram. Learned counsel submits that findings of Labour Court that appellant did not give any date of joining of school is against record of lower court rather appellant categorically stated that he was appointed on 1-7-2003 as an English Teacher.
Learned counsel drew attention of this Tribunal Exhs.P.16 and 17, applications were moved by the employee Akram Ali for concession of fee on said applications, the Principal passed an order and this application was moved by appellant as an employee of respondent-academy. Learned counsel placed reliance on 2002 PLC 326 wherein it is held that if any piece of evidence of examination-in-chief is not rebutted or denied or cross-examined that will be deemed admitted.
Learned counsel submits that appellant was orally terminated, no show-cause notice was issued to employee/appellant. Learned counsel for appellant argued that respondent failed to produce Akram who was an English Teacher in the Academy. Further, learned counsel for appellant submits that respondent deliberately withheld salary Register and other documentary evidence which was in their possession that instead of present, appellant there was another Akram who was employee in the Academy as an English Teacher.
8. Learned counsel for respondent submits that appellant was never employee of the respondent- institution and appellant did not write date of his appointment in grievance petition, the fact which is not mentioned in the pleadings, the evidence cannot be advanced on the said fact. Learned counsel submits that respondent-institution is educational institution which is not run on commercial basis, so learned Labour Court has no jurisdiction to entertain the grievance petition.
Learned counsel for respondent submits that appellant failed to produce any document that he was appointed as a teacher and he taught in the Academy for number of years. There is not an iota of evidence on the record in this regard. Learned counsel submits that grievance notice was not served upon the employer which is prerequisite for filing a grievance petition before Learned Labour Court. Learned counsel submits that grievance petitioner failed to establish relationship of employee and employer. Exh.P.3 Employment Card is fake and fabricated. Learned counsel placed reliance PLJ 2001 Tr.C. 514 on the point of relationship of employer and employee. Learned counsel further submits that present appellant submitted an application before E.D.O. Muzaffargarh levelling allegations/charges against the institution which were found false. Learned counsel submits that appellant badly failed to substantiate his employment in the respondent-institution.
Learned counsel submits that present appellant could not establish relationship of employer and employee. Learned counsel vehemently supported impugned judgment dated 25-4-2014 passed by Learned Labour Court.
9. I have heard the learned counsel for both the parties and perused the record of the learned trial court minutely.
10. The question to be determined in the instant case is whether grievance petitioner/Akram Ali was an employee in the respondent-institution as an English Teacher or not. This fact is vehemently denied by the learned counsel for respondent that he has never been a teacher in the respondent- institution. In Exh.P.3 name Muhammad Akram is written. Learned counsel submits that Akram was an employee not Akram Ali learned counsel for appellant rightly submitted that Employment Card produced in court which is issued by the Principal of the institution, name Muhammad Akram is written which is exhibited as Exh.P.3. It is my considered view that respondent deliberately withheld best evidence which was in their possession to prove that Muhammad Akram is another employee whose name is written in different documents of the institution. This mystery is enshrouded. The respondent institution had in their possession attendance register, salary register and other record which respondent could produce in the Trial Court that Muhammad Akram is another person who was employee of respondent-institution not Akram Ali. To resolve this issue at the end of arguments, this Tribunal asked the appellant who was present in the Court whether he is ready to take Special Oath on the Holy Quran that he was the employee of respondent-institution and taught there for number of years. He replied yes, he is ready to give special Oath on the Holy Quran.
To know view of Principal or the respondent-institution on this aspect, case was adjourned for one day and learned counsel for respondent was asked to contact Principal whether he is ready to accept Special Oath or not. On next day, learned counsel for respondent told this Tribunal that Principal of the respondent-institution is not ready to accept Special Oath and this Tribunal should decide the case on merit. The respondent-institution badly failed to produce before trial court Muhammad Akram who was another employee of the respondent-institution before Learned Labour Court to substantiate claim of the respondent-institution that he is .Muhammad Akram who is teaching there instead of Akram Ali who could depose before learned Labour Court that Muhammad Akram who taught in the institution was another employee not grievance petitioner Akram Ali. The benefit of this will go to the appellarit/grievance petitioner who's in possession of employment Card and that Employment Card is exhibited P.3 and respondent did not raise any objection, so the finding of learned Labour Court that he was never employee of the institution is hereby set aside. It is my considered view that grievance petitioner Akram Ali was appointed there as he deposed in examination in chief and that part of statement was never cross-examined by the learned counsel for respondent-institution. It is held in PLD 2004 SC 182, 2007 PLC 75 that part of statement of examination-in-chief which is not cross-examined it would be deemed admitted so the statement of grievance petitioner that he was appointed on 1-7-2003 in the respondent- institution and taught there for number of years is admitted.
11. Second question which should be determined whether learned Labour Court has jurisdiction to entertain the grievance petition or not as learned counsel for respondent vehemently stressed that institution is an educational Academy and learned Labour Court has no jurisdiction against educational institutions. Under provision of I.R.A., 2010. Employee of an education which is run on commercial basis can approach Labour Court for redressal of his grievance. The relevant provision of law 3(h) or I.R.A., 2010 is reproduced below:--- "(3) It shall apply to all persons employed in any establishment or industry, but shall not apply to any person employed:
(h) "in an establishment or institution providing education or emergency services excluding those run on commercial basis".
' Further it is held in 1990 PLC 675 titled as Mrs. Nishat Aslam v. Messrs Becon House Public (Pvt.) Ltd.
That "Job of appellant was to impart knowledge of letters and words to students by writing same on blackboard, write on their copies and check and correct writing of students which part of her duties involved manual and clerical labour and could neither be considered as incidental or ancillary to her job but one of the main parts of her job, appellant was as such a workman". The appellant has been performing exactly similar duties in school as mentioned in judgment supra passed by Sindh Labour Appellate Tribunal. So, it is admitted fact that respondent institution is a private school/institution and in the light of judgment supra, the C appellant could lcnock the door of Labour Court for redressal of his grievance as mentioned in 3(h) of I.R.A., 2010.
12. Learned counsel for respondent-institution also argued that appellant did not serve grievance notice upon the employer and filed grievance petition, same cannot be proceeded. The record of the lower court reveals that application filed by respondent-institution under Order VII, Rule 11, C.P.C.
Is exhibited Exh.P.1 while this application was filed by the respondent which cannot be exhibited Exh.P.1. Learned Labour Court committed mistake in exhibiting said application as Exh.P.1, copy of grievance notice is on the record of the lower court which should have been exhibited as Exh.P.1 and application filed by respondent could be Ex.R.1. On account of mistake of the Court, party cannot be penalized. The grievance notice is present in the file, it will be read as Exh.P.1 instead application filed under Order VII, Rule C.P.C. The perusal of judgment passed by learned Labour Court reveals that D learned Labour Court ignored documentary evidence produced by appellant in support of his pleadings and on number of documents namely Muhammad Akram or Akram Sb.
Was written instead of Akram Ali and employment card is also issued to appellant in the name of Muhammad Akram. These documents and employment card in the possession of appellant established that person who taught in the institution was Akram Ali and on account of certain reasons employment card bears name Muhammad Akram instead of Akram Ali.
13. Two applications i,e, Exhs.P.16 and 17 submitted by appellant before Principal of the Academy are also on the record wherein Principal passed an order with regard to concession of fee and Principal/Chief Executive of Academy never observed that Akram Ali is not a teacher in the Academy.
14. In view of the above discussion, the order dated 25-4-2014 passed by Learned Labour Court is hereby set aside by accepting the appeal of the appellant with 50% back-benefits. The respondent-institution is directed to reinstate the appellant in service with immediate effect. No order as to costs.