1. AWARD >' In {his application, under section 34 of the Industrial Relations Ordinance, 1969 the applicant seeks re-instatement in service with full back benefits or in the alternative, payment of his legal dues. The applicant's case is that he was the permanent employee of the respondents having been appointed as Foreman, on lst January 1963, with the pay of Rs. 400 in addition to other allowances. On account of jealousy and hostile attitude of certain interested persons, he was subjected to harassm ent and victimisation by way of frequent change of postings and transfers and often times payment of tbe salaries was delayed or withheld. Due to such hardships inflicted on the applicant, he was compelled to submit a conditional resignation on 24th December 1969. No intimation of the acceptance or otherwise of his resignation was, however, communicated to him till 5th April 1971. In the meantime, he changed his mind and made an applicaiion to the respondents, dated 5th April 1971, withdrawing his resignation which had not been accepted till then. But, no reply has been received by him so far, in spite of several reminders sent by him. The applicant, therefore, seeks a declaration that his conditional resignation was not legally and rightly accepted, and hence he is entitled to re-instatement in service yvith full back benefits. He further states that, even if his resignation had been accepted, he could not be deprived of his legal dues comprising of gratuity, provident fund, bonus, leave encashment and earned wages since the month of August 1969. He has claimed these dues in the alternative. The respondents plead that the applicant having been employed as a foreman, does not fall within the definition of Workman, and hence the application is not maintainable. They have denied that the applicant was subject to harassm ent or victimisation or to frequent transfers etc. They state that he was transferred only once from Asphalt Plant to Pumping Station, on 31st July 1969. He remained absent from lst August 1969 till 15th October 1969, and joined the new posting on 16th October 1969, but again absconded from duty since 30th October 1969. He then submitted his resignation on 24th December 1969.
2. Nothing was known about him ;till 12th January 1971, when he made an application requesting for acceptance of his resignation. He was informed by letter dated 16th August 1971, that his resignation had been accepted with effect from 30th October 1969, which was received by him on 12th August 1971. His salary from lst August 1969 to 15th October 1969, could not be regularised on account of his continued absence. The respondents further state that the applicant is not entitled to gratuity, bonus, leave, encashment or earned wages since 30th October 1969. His provident fund, however, has not been denied to him. During the proceedings, the applicant examined himself, and the respondents examined Akhlaq Ahmed, the Assistant Engineer, under whom the applicant was working. -- Now, as regards the plea of the respondents that the applicant is not a workman, and hence the application is not maintainable, the statement of their own witness. Akhlaq Ahmed, is significant. In his cross-examination, he has stated as follows : -- "He was my subordinate. The duties of the applicant were firstly that he used to supervise the work of Assistant Foreman, Mechanics etc., secondly, he used to overhaul the engines and also do the work of erection. The erection work was done entirely by the applicant with the help of his Assistants. The duties of the applicant, in addition to the supervision, consisted of doing the work with his own hands. The normal working hours were 8 hours but, when the plant was working, we had to work from l2 to I6 hours daily. The plant used to work for about 3 months " In section 2, Clause (xxviii) of Industrial Relations Ordinance, 1969, a "Workman" is defined as the one not falling within the definition of employer, who is employed in an establishment or industry for hire or reward. It appears the respondents are relying on sub-clause (b) of Clause (viii) of section 2, which provides that an employer includes any person responsible for the Management, supervision and control of the Management. But, in the present case, from the admissions of the respondents' witness, it is evident that the applicant had to do the work of overhauling of the machines, and the erection work with his own hands, in addition to the supervision work Therefore, the applicant cannot be said to be doing the work of supervision exclusively, in order to be excluded from the definition of a "Workman.' In Clause (0 of section 2 of the Standing Orders Ordinance, 1968, a "Work man" is described as the one employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical, Labour for hire or reward. Therefore, the case of the applicant, examined in the light of the admissions made by the respondents' witness, would clearly come within the definition of workman contained in both enactments. Having found that the applicant is a workman and, consequently the application is maintainable, I will now proceed to consider the facts of the case. The applicant admits that he remained absent from duty since 30th October 1969, and that he submitted his resignation on 24th December 1969. In his application, be has stated that the resignation was conditional and that subsequently, he changed his mind and made an application on 5th April 1971, withdrawing the resignation, since it had not been accepted till then. But, he has not repeated these allegations in his affidavit in evidence, nor has he produced any application withdrawing his resignation. On the contrary, in his cross-examination, he admits that, on 12th January 1971, he had sent a letter to the respondents asking for the acceptance of his resignation. He has produced the photostat copy of that letter, Exh. R-l, which shows that Mazdoor Union v. Khokhar Glass Works (Shaf/i Muhammad R. Akhund, Chairman) he was submitting the clearance certificate as required and requested that his resignation be accepted and dues may be paid to him. It is, therefore, clear that the applicant had not only resigned from service, but had also requested for the acceptance thereof. Consequently, his prayer for re-instatement in service cannot be granted. $ It is also an admitted position that the resignation of the 'applicant was not accepted till 6th August 1971, when he was informed by the letter of that date, Exh. R-2 that his resignation was accepted with effect from 30th December 1969. This letter was admittedly received by the applicant, on 12th August, 1971. It is, indeed, very surprising that the resignation submitted, on 24th December 1969, should have been accepted nearly two years thereafter. However, the question is whether the resignation tendered, on 24th December 1969, could be effective with retrospective effect from 30th October 1969, even if the applicant remained absent from that date.
3. Now, the legal and proper course for the respondents, in case of unauthorised absence of the applicant, would have been to proceed against him as provided by Standing Order 15 of the Standing Orders Ordinance, 1968. Under the said Standing Order, absence without leave for more than ten days is a misconduct for which the employee is liable to be dismissed. Clause (4) of the said Standing Order, however, provides that no Order of dismissal shall be made unless the workman concerned is informed in writing of the alleged miscon- b duct and is given an opportunity to explain the circumstances alleged against him. In the present case, admittedly, no notice calling the applicant to resume duty was sent to him, nor was the procedure laid down in Standing Order 15 adopted, when his absence from duty exceeded ten days. Consequently, he was deemed to be in the employment of the respondents till he tendered his resignation on 24th December 1969, and it is from that date his resignation will take effect. Therefore, he is entitled to get his pay till 24th December 1969, in addition to the pay since lst August 1969 which has admittedly not been paid to him so far. The respondents have admitted that the applicant is entitled to the payment of Provident Fund. The applicant has, however, claimed bonus, gratuity and leave encashmant. These benefits, except bonus, are no doubt payable on termination of service of an employee. But, this is a case of resignation, and the applicant or his learned Representative have not pointed out any provision of law under which these benefits can be claimed in such a case. Consequently, the applicant is not entitled to these benefits. Therefore, in the result, the application is allowed to the extent that the applicant is entitled to the payment of his salaries from lst August 1969 t, 24th December 1969, in addition to his Provident Fund.