DECISION ' This is an appeal against the order dated 5th January, 1991 passed by the learned Presiding Officer, Sindh Labour Court No,IV at Karachi whereby the grievance petition of the respondent was allowed and he was directed to be reinstated in service with full back benefits.
2. I have heard Mr. Abdul Hadi Farid, Manager, Administration Legal Affairs for the appellant and Mr. Al-Haj Farid Gul Khan for the respondent and have also gone through the record and proceedings of the case.
3. The admitted facts of the case appear to be that the respondent was working with the appellant when his services were terminated on 20-12-1989. According to the respondent he was gate- stopped on the said date and his services were terminated without an order in writing. He first approached the Labour Directorate but on failure to get any relief, he served grievance notice upon the appellant and then filed the grievance petition which was resisted by the appellant on the ground that respondent had himself resigned from service and left the job.
4. The main evidence in the case is the alleged resignation of the respondent which is Annexure A/5, acceptance of resignation Annexure A/6 and full and final settlement of dues Annexure A/7.
The learned Labour Court has observed that except Exh. A/6 the respondent had admitted his thumb-impression on all other documents. However, I find that in his cross-examination the respondent had also admitted his thumb-impression on ExhA/6 but he has disowned the resignation and the contents of all these documents. His contention is that appellant used to obtain his thumb-impression on various blank rappers. This contention of the respondent gets support from the reply by the appellant to the grievance notice of the respondent, which has been produced by the respondent alongwith grievance petition as Annexure-C. It shows that because the appellant refused to waive the notice period, the respondent refused to collect his legal dues and left the mill premises. If this contention be correct, then there appears to be no reason for the respondent to thumb mark Annexure A/7 which is full and final settlement. This so-called full and final settlement is also not full and final settlement. Mr. Abdul Hadi Farid who had signed the Written Statement and also the appeal in this Tribunal was asked to explain this position. He contended that A/7 was only with regard to the amount due from the respondent to the appellant as it shows Company's dues as Rs, 140.65. He states that the respondent was to be paid his Provident Fund and also bonus when declared. This document Exh. A/7 does not mention about the Provident Fund or the bonus. Under the circumstances it looks improbable that respondent would have left Provident Fund and bonus without collecting the same when alleged dues of the appellant were only Rs,140.65. These strong circumstances. Indicate that this document was not thumb-marked by the respondent at the time of full and final settlement but it appears more likely that appellant had obtained the thumb-impression of respondent earlier as alleged by him.
5. In cross-examination of Mr. Abdul Hadi Farid, it was suggested that they used to obtain signature or thumb-impression on several blank papers and pro formas, at the time of appointment of the workman, which is denied by him. Another circumstance that creates suspicion about genuineness of these documents is that they were not produced with the written statement though of A course the respondent had mentioned the same in the written statement. It is proper for the party, which relies upon any documents, to produce the same with their pleadings, so that other side has opportunity to rebut to explain about those documents. By mere confronting the respondent with the documents in the cross-examination would not be sufficient compliance of this principle. These documents in fact constitute the main evidence relied upon by the appellant and they were in possession and power of the appellant and no reason is shown as to why the same were not produced alongwith the written statement. Even when taken by surprise, when confronted with documents in the cross-examination, the respondent has been frank enough to admit his thumb- impressions but has explained the document by saying that the appellant used to obtain his thumb-impression on various blank papers and pro formas at the time of appointment. He has in clear terms disowned the contents of the documents. I have already held that disowning the document Annexure A/7 appears to be supported by the circumstances as discussed above.
6. Under these circumstances the burden shifted upon the appellant to prove that the respondent had voluntarily tendered his resignation and also thumb-marked the acceptance letter. Mumtaz Ahmed, a Welfare Labour Officer of the appellant has stated that the resignation of the respondent was also approved. And signed by his jobber Mian Delfaroz. This Delfaroz has not been examined to show that the resignation was thumb-marked by the respondent in his presence and that he had the knowledge of its contents. The order on this resignation is passed by Mr. Abdul Hadi Farid. Even he does not state, that the respondent had thumb marked it in his presence or that the content of Annexure A/5 was read over to the respondent. This Annexure A/5 does not bear the signature of R/W Mumtaz Ahmed therefore his evidence could not be said to have proved this document.
Similar is the position in respect of the acceptance letter Annexure A/6.
7. The learned Labour Court has rightly held that this alleged resignation Annexure A/5 was conditional resignation, even it is accepted to have been tendered by the respondent. He had allegedly resigned on the condition, that notice pay should not be deducted and he should be paid his dues. This condition was not accepted and therefore according to reply to the grievance notice, the respondent left without even collecting his dues. Under such circumstances he could not have thumb-marked Annexures A/6 or A/7 which are written in English. The respondent has thumb- marked these documents whereby presumption would be that he was illiterate. There is no evidence to show that those documents were read over and explained to the respondent, who voluntarily thumb-marked them accepting the contents. In absence of proof, that the respondent accepted the conditional acceptance of his resignation, he could not be said to have tendered resignation. If he had remained absent thereafter he could have been proceeded against for remaining absent without permission, but it cannot be held that he had left in pursuance of acceptance of resignation.
' In view of above discussions, I find no merit in this appeal and the same is dismissed.