DECISION ' This is an appeal against the order of the learned Presiding Officer, Sindh Labour Court No, VI at Hyderabad, dated 4-10-1989; whereby the grievance petition filed by the appellant was dismissed.
2. The brief facts of the case are that the appellant admittedly was employed as a workman as Head Time-Keeper by the respondents and admittedly he tendered his resignation on 1-4-1988 giving one month's notice which expired on 30-4-1988. However, his resignation is alleged to have been accepted on 11-12-1988. The appellant claims that his resignation had been refused by the respondents and, therefore, he continued to work and that his services were orally terminated because of his trade union activities on 12-12-1988 without any written orders. After serving the grievance notice upon the respondents, he filed the grievance petition.
3. I have heard Mr. Ahsanul Haque, learned Advocate for the appellant and Mr. Bashir Awan, learned Advocate for the respondents and have also gone through the record and proceedings of the case.
4. It is not disputed, that the appellant had tendered his resignation on 1-4-1988 giving one month's notice which expired on 30-4-1988. It is also not disputed that his services were not terminated on 1-5-1988 in pursuance of that resignation. It is contended by the appellant that the respondents had refused to accept the resignation and, therefore, he continued to work; whereas the respondents alleged that the appellant requested them to keep his resignation pending and that he insisted for its acceptance on 11-12-1988. These contentions of both the parties are oral and there is no documentary evidence in support of such contentions.
5. The point that requires for consideration is whether after lapse of more than 7 months, the respondents could have acted upon the resignation tendered by the appellant and could have terminated his services by accepting the same. Mr. Bashir Awan, the learned Advocate for the respondents has relied upon 2 decisions of this Tribunal. In the case of Abdul Wahid v. M. Rafi reported in 1980 PLC 1158, this Tribunal had held "that the acceptance of resignation was not essentially to be communicated by the employer. Resignation with one month's notice would be deemed to be automatically accepted on expiry of notice period and non-communication of acceptance or continued working for few days by workman, did not alter position." In that case the workman had tendered his resignation on 19-6-1979 giving one month's notice which was accepted with effect from 25-7-1979 and he was asked to collect his dues on 30-7-1979. In the case of Muhammad Arshad v. Nida-e-Millat Ltd., in Appeal No, KAR-303/1988, decided on 22-2-1989; the workman had tendered his resignation on 20-8-1986, which was accepted. He alleged that he orally had withdrawn the resignation which plea was disbelieved by this Tribunal in the absence of any documentary or corroborative evidence with regard to its withdrawal. Mr. Ahsanul Haq, the learned Advocate for the appellant has relied upon a decision of Division Bench of Sindh High Court in the case of Abdul Samad v. Commissioner and Appellate Authority (Election), reported in 1984 CLC 232; where it was held that the resignation of nongazetted Railway employee was to take effect either immediately on its receipt or on expiry of a reasonable time which could not be more than one month.
6. The consensus of all these decisions appears to be, that the resignation tendered by the workman would be deemed to have been accepted either on the expiry of the period of notice or it could be accepted within a reasonable time from the expiry of the notice period which shall not exceed more than one month. In the instant case, if the resignation of the appellant is deemed to have been accepted automatically on the expiry of the period of notice viz., on 1-5-1989, then his further retention in service for over 7 months up to 11-12-1988 would be on fresh contract of service.
The management could not keep this resignation as Democles' Sword, hanging over the head of the workman and accept it as and when it chose. This alleged order of termination on 12-12-1988 cannot be considered to be in pursuance of the resignation tendered on 1-4-1988.
7. It appears that the management itself was conscious of this defect and, therefore, gave another reason also in order of termination that the post of Head Time-keeper had been abolished. These alternate pleas also weaken the case of the management as on the one hand they allege that the appellant had insisted that the resignation be accepted on 11-12-1988; and at the same time, they plead that the services of the appellant were terminated as the post of Head Time-keeper against which the appellant was working, had been abolished. This conduct of the respondents would give credence to the allegation of the appellant, that he was removed from service because of trade union activities. Be that as it may, the order of termination of services of the appellant does not appear to be bona fide, but, it is a colourful exercise of the powers by the management for the reasons other than mentioned in the order. I, therefore, allow this appeal; set aside the order of the learned Labour Court and also the order of the respondents terminating the services of the appellant and order his reinstatement in service. As during the intervening period, the appellant had not rendered any service to the respondents, and there is no satisfactory evidence to show that during this period, he remained unemployed or was gainfully employed, I award him 50% (fifty per cent.) back benefits. The order to be implemented within one month.