This Labour Appeal under Sections 46(3) & 47 of the Punjab Industrial Relations Act, 2010 has been preferred against the impugned judgment dated 04.03.2019 passed by the learned Presiding Officer, Punjab Labour Court No. 09, Multan. whereby a grievance petition filed by the Respondent No. 1 Bashir Ahmad stands accepted.
2. Precise facts giving rise to the instant appeal are that the respondent Bashir Ahmad instituted a grievance petition under Section 33 of the Punjab Industrial Relations Act, 2010 against the appellant Colony Textile Mills (CTM) with a claim that he was employed as Shift Jobber in the appellant establishment on 06.09.2010 and continued to perform such duty satisfactorily and on 24.06.2014 when the respondent came to join his duty as per routine and inserted his duty card in computer after duty hours at 5:00 PM the same was bounced as non operative, whereupon the respondent approached the General Manager, Unit No. 5. CTM Ismailabad, Multan for issuance of fresh Nills card but he was asked to visit Mills on the following day. On the next day 25.06.2014 the respondent was not permitted to enter the Mills and he was made to sit idle on the outer gate and ultimately asked to leave. Subsequently, the respondent's efforts to rejoin duty also proved fruitless, so in these circumstances the respondent issued a grievance notice to the appellant management to refrain from making him jobless illegally but still getting no positive response was ultimate constrained to file the grievance petition with a prayer to learned labour Court, Multan to direct the appellant to allow the respondent to rejoin his duty and not to discharge, remove or terminate him from service illegally. The appellant contested the grievance petition and in their written reply mainly raised the stance that the grievance petition was not maintainable in its present form on account of concealment of material facts from the labour Court. Further maintained that the respondent during his employment period was found to be a quarrelsome and recalcitrant as he involved the appellant management in endless litigation from the day one and wanted to perform duty according to his caprice and in furtherance of such design he filed an application for transfer to Twister department with a threat that if he was not transferred he may be considered as resigned from service w.e.f. 24.06.2014 and when he was conveyed by the appellant management about non-availability of vacancy in Twister department, upon his strong insistence his resignation was accepted on the same day i.e. 24.06.2014 and his final dues were calculated for payment but the respondent never came to receive the same, hence in these circumstances, his grievance petition was liable to be dismissed. After observing the formalities of trial as mentioned above the grievance petition filed by the respondent was accepted vide impugned judgment dated 04.03.2019 passed by the learned Presiding Officer. Punjab Labour Court No. 09: Multan in the terms that after setting aside the resignation of the respondent dated 24.06.2014 as being illegal the appellant were directed to reinstate the respondent on duty with all legal back benefits, hence this appeal, which is opposed from the opposite side. Arguments of the learned counsel for the parties have been heard.
3. Arguing the appeal the learned counsel for the appellant submits that the impugned judgment passed by the learned labour Court is against law and facts as outcome of misreading and non reading of evidence and non application of judicious mind and relevant provisions of substantive and labour laws. Further argued that during the trial the appellant in their written reply had raised several legal objections relating to maintainability of the grievance petition in its present form, lack of jurisdiction and non impleading of necessary parties under the Company law etc but the learned labour Court miserably failed to resolve these questions while delivering the impugned judgment. Further argued that the learned labour court while ordering reinstatement of the respondent also unduly and illegally awarded the back benefits, hence in these circumstances, the appeal be accepted. The learned counsel for the appellant placed reliance upon the cases "Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others" (1991 SCMR 2087) and "Manager Operation MEPCO y. Ibrar Hussain etc" (PLJ 2039 Lahore
(Note) 100 [Multan Bench, Multan]. The learned counsel for the respondent has vehemently opposed the appeal by defending the impugned judgment as perfectly legal and correct.
4. Heard, record perused.
5. In order to determine the fate of arguments particularly advanced by the learned counsel for the appellant on several legal aspects it seems appropriate to first refer some detail of trial proceedings outcome having taken place before the learned labour Court, Multan. In order to establish his claim raised through the grievance petition the respondent Bashir Ahmad in his evidence examined himself as PW-1 and in documentary evidence he tendered the record of his service card, several applications filed before management of the appellant for permitting him to join duty and record of previous litigation between the parties on several administrative issues and alleged excesses committed by the appellant management, grievance notice and postal receipts Ex.P.1 to Ex.P.17. In cross-examination PW-1 was grilled from opposite side on several issues relating to his omissions, inactions and not challenging his resignation letter through instant round of litigation but the respondent though frankly admitted his signatures upon an application for transfer to some other department of the Mills but categorically denied the portion of application, which stipulated threat of resignation. In rebuttal the appellant examined Sakhawat Hussain, Factory Manager of the appellant, who from his replies given in cross examination was found to be not conversant with the facts and circumstances of the employment issues of the respondent as the said witness (RW-1) joined the service of the appellant in the year 2013.
6. During the course of arguments on the appeal the learned counsel for the appellant vehemently raised a plea about big negligence and omission of the respondent for not challenging the resignation letter through the grievance petition and not specifically setting up a prayer for vitiating such letter and his reinstatement into service with back benefits but the learned labour Court, Multan, while deciding the grievance petition illegally considered the above controverted facts, which was beyond the pleadings and awarded a relief, which was never asked for. The learned counsel for the respondent on the other hand countering such arguments came up with the response that the respondent was a poor low paid employee with no worth mentioning educational qualification to understand the intricacies of law and it were the appellant who raised the plea of resignation of the respondent and in this way they were primarily required to bring and place such piece of evidence before the learned labour Court to enable it to judge its genuineness or otherwise. In this behalf the learned counsel for the respondent drew the attention of this Tribunal towards forfeiture of right of appellant to lead documentary evidence by the learned labour Court during the trial of grievance petition vide order dated 03.06.2016, which has never been challenged up till now even through this appeal. In this regard it may be noted that during the trial of grievance petition it were the appellant, who raised the plea of resignation of the respondent under a threat through a written application, which was obviously in their possession and they could have tendered such document in their evidence to substantiate their plea that the respondent was a quarrelsome and wayward employee but they withheld such an important piece of evidence regarding which the principles of Qanun-e-Shahadat Order, 1984 in Article 129(g) are quite obvious and pertinent to draw adverse opinion against the appellant. In this regard the learned labour Court, Multan in paragraphs Nos. 10 to 12 of the impugned judgment has ably recorded apt comments on this aspect. As regards another line of argument adopted by the learned counsel for the appellant that the respondent had not properly and correctly drafted or amended his grievance petition in order to bring it in legal form, it is a matter of settled preposition in the light of guidance propounded by the hon'ble superior Courts of this country that the labour laws are to be construed liberally and favourably to the interest of employees and decision of cases on merits have always been encouraged instead of non-suiting the litigants for technical reasons. In this regard guidance is solicited from the cases of Forbes Forbes Campbell and Co Ltd., Karachi and 03 others v. Habib-ur-Rehman and 02 others" (1982 SCMR 651) and "Managing Director, Sui Southern Gas Company Ltd., Karachi us. Ghulam Abbas and others" (PLD 2003 SC 724). In view of the above discussed background if there was some omission on the part of the respondent in the matter of not challenging the so-called resignation application and when the appellant had suspiciously withheld such an important document from the Court, the learned labour Court was justified to declare such document as illegal.
7. Now adverting to the remaining legal grounds raised in arguments such as not impleading the necessary and proper party in the grievance petition in the light of some provisions of Company laws etc, the learned counsel for the respondent in this regard aptly quoted the definition clause of 'Employer' given in Section 2 of the Industrial and Commercial Employment (Standing Orders)
Ordinance. 1968 which is reproduced hereunder for ease of reference:
2. Definitions: In this Ordinance, unless there is anything repugnant in the subject or context--
(a) ...............................................................................
(b) ................................................................................
(c) "Employer" means the owner of an industrial or commercial establishment to which this Ordinance for the time being applies, and includes--
(i) in a factory, any person named under Clause (e) of sub-section (1) of Section 9 of the Factories Act, 1934 (XXV of 1934), manager of the factory; In the grievance petition filed by the respondent, the respondent impleaded Factory Manager of CTM Islamabad. Multan besides its General Manager so the objection raised from the appellant's side carries no weight. Similarly, the other objections raised from the appellant's side that the learned labour Court possessed no lawful authority or jurisdiction to adjudicate the controversy placed before the said forum also lacks any substance because the respondent being employed as worker in the appellant establishment had no other remedy except to approach the labour Court forum.
8. In the last determining the controversy of back benefits awarded to the respondent by the learned labour Court through the impugned judgment it is indeed a settled legal position that the onus lies squarely upon the employee to prove that during entire period he remained out of service and was not doing any job after he was dismissed and the back benefits do not automatically follow the order of reinstatement where the order of dismissal or removal has been set aside as held in the judgments of hon'ble superior Courts relied by the learned counsel for the appellant noted above and for this purpose the evidence particularly led from the respondent's side during the trial has been scanned, which nowhere contains a requisite observance of formality to claim back benefits with specific assertion that he was not gainfully employed elsewhere during the period of unemployment. Rather the respondent while facing cross-examination conceded that during previous round of litigation a local commission had visited his work place to assess that he was running a General Store and the said local commission had confirmed this situation. In this view of the background the judicial opinion of the learned labour Court in awarding back benefits to the respondent without determining the essential legal requirement cannot be held sustainable in the eyes of law. Accordingly the impugned judgment of the learned labour Court dated 04.03.2019 shall be deemed to be modified accordingly and it is declared that the respondent shall not be held entitled to back benefits.
9. In the light of what has been discussed and held above, the appeal filed by the appellant is partially dismissed to the extent of declaring the resignation of the respondent and his reinstatement into employment as ordered by the learned labour Court, Multan and partially accepted to the extent of non-entitlement of the respondent to claim back benefits. A copy of this judgment along-with record be remitted to the learned labour Court concerned for information and file of appeal to records.