DECISION ' This is an appeal against the order, dated 22-5-1989, passed by the learned Presiding Officer, Sindh Labour Court No,I, Karachi, whereby the grievance petition of the appellant was dismissed.
2. I have heard Mr. M.M. Jeelani, learned Advocate for the appellant and Mr. A. Hafiz, learned counsel for the respondents and have also gone through the record and proceedings of the case.
3. The brief facts, leading to this appeal are, that the appellant was admittedly working as a Jobber with the respondents till 8-9-1986. The appellant's case is that on 6-9-1986 Seth Iqbal visited the appellant's section but he was not satisfied with the work of the appellant and therefore ordered the appellant to settle his account. It is alleged by the appellant, that he' was refused the entry in the mill since 8-9-1986. He served grievance notice upon the respondents and failing to get any redress he filed the grievance petition. The respondent resisted the grievance petition on three grounds. Firstly that the appellant was not a workman and, therefore, he could not invoke the aid of Labour Court secondly, that no grievance notice was given by him to the respondents and thirdly, that the appellant himself tendered resignation. All the three grounds taken by the respondents were accepted by the learned Labour Court, while dismissing the grievance petition of the appellant.
4. The appellant in his grievance petition has stated that he was required to do the maintenance of machines and to .Attend all the repair work in his `Khata' and his work involved use of hands and was of manual nature. In his affidavit-in-evidence he has further clarified that the nature of his work was to operate the machines at the start of work and close down the machines at the end of the shift, and also used to unload the production of machine which involved physical labour. His statement is challenged in the cross-examination but he has denied the suggestion that he was not doing any manual work or he was not operating any machine. His only witness Abdul Sattar has not given any description of work done by the appellant but simply stated that his duty involved physical and manual work. He has also denied the suggestion in the cross-examination that appellant was not doing any manual work. In rebuttal there is only oral word of Abdul Karim, Factory Manager of the respondents mill, who has stated that the appellant did not perform any manual or clerical work and did not operate machines. Thus there is only oral word of the appellant witness against oral word of respondent's witness as to the nature of the duties of the appellant. It is settled law that it is not the designation but the nature of duties which determines the status of an employee as to whether he was or was not a workman. The respondents have not produced any job description showing the nature of the work of the appellant. From the evidence on record the stands taken by both the parties respectively are possible. The labour laws being enacted for the benefits of workman the view favourable to the workman has to be accepted. As such I hold the appellant to be a workman and set aside the finding of the learned Labour Court on this issue.
5. The next question that requires consideration is whether the appellant served grievance notice upon the respondent. It is not disputed that one grievance notice which is Annexure 'A' was served upon the respondent to which they had also replied. However it purports to bear the signature of the appellant whereas in the cross-examination he had admitted that he did not C know how to sign, but again asserted that he did sign the grievance notice. From this conflicting statement the learned Labour Court drew the conclusion that the grievance notice did not bear the signature of the workman but of some body else, therefore it could not be said to be proper grievance notice under section 25-A of I.R.O., 1969.
6. On perusal of record I find that the appellant has put thumb-mark as well as signature on the grievance petition and also on his affidavit. Admittedly the appellant is illiterate person. It also appears from his statement, that he always puts his thumb-mark, but that alone would not conclusively prove that he could not sign. He was asked to sign before the Tribunal and he did sign on the blank paper. This specimen signature appears to bear resemblance to the signature on the grievance petition as well as on affidavit-in-evidence and on the grievance notice. The signatures are no doubt of an absolutely illiterate person and are not even legible, but all the same that the appellant was able to sign and put his signatures on the blank paper in this Tribunal which bears resemblance to the signature on the grievance notice would raise strong probability that the grievance notice was signed by him as asserted by him in his cross-examination. The respondents did not request the Labour Court to obtain his signatures and send them to Handwriting Expert for comparison with his signature on the grievance notice. Under the circumstances I hold that proper grievance notice was served upon the respondent and consequently set aside finding of the learned Labour Court on this issue also.
7. It leaves us only with the question as to whether the appellant himself esigned the job or he was refused entry because of displeasure of Seth Iqbal. The respondent mill denied that Seth Iqbal has anything to do with the mill. They have produced the application of resignation and also a letter accepting the resignation which both admittedly bear the thumb-impression of the appellant.
8. The appellant has contended, that at the time of entry in service, he was made to sign number of blank papers which have been used by the respondents for manipulating his resignation and acceptance of resignation. He has denied the suggestion in the cross-examination, that no such signatures on blank papers were taken but he admitted that he did not complain to any authority about this alleged malpractice of the respondents. In his support he had first filed affidavit-in- evidence of one Badar-e-Alam, who had held photostat copies of set of forms printed as well as blank which purport to bear his thumb-impression. However this Badar-e-Alam was not tendered for cross-examination but instead one Abdul Sattar was examined who has also produced similar set of photostat copies of blank papers purporting to bear some thumb-impressions, which are Annexures A-1 to A-7. This witness admitted in his cross-examination, that these documents were given to him by Badar-e-Alam. This admission is further supported by the fact that the document A-1 as well as first document produced by Badar-e-Alam are in the name of Rauf Khan, whereas all other six documents are blank. Though Badar-e-Alam had not been tendered for cross- examination, therefore his evidence cannot be used against the respondents but he has filed affidavit-inevidence in support of the appellant and is his witness, therefore if there is any admission in his affidavit-in-grievance it can be used against the appellant who had no right of cross-examination. This Badar-e-Alam stated these documents bear his thumb-impression which were taken by the employer at the time of employment. Witness Abdul Sattar also states in his affidavit-in-evidence that the documents produced by him Exhs. A-1 to A-7 were obtained by him from one of the workers of the respondents mill which in the cross-examination he has clarified to be Badar-e-Alam. The fact that Badar-e-Alam did not tenders himself for cross-examination would nullify the assertion of Abdul Sattar, that they bear the thumb-impression of Badar-e-Alam.
The other question that arises is, that how could the worker obtain the photostat copies of the signed or thumb-marked blank forms, which the respondent allegedly kept with himself for use when necessary. It is suggested in the cross-examination of Abdul Sattar, that photostat copies of blank forms were obtained and then they were thumb-marked by some one. Abdul Karim witness for the respondent has denied the averment that they used to obtain the signatures of employees on blank forms at the time of their employment.
9. The reason for his removal from service shown by the appellant is that on 6-9-1986 Seth Iqbal was dissatisfied and asked him to settle his account. Had that assertion been correct the services of the appellant would have been dispensed with on 6-9-1986 but they were dispensed with on 8th.
Admittedly he did work on 7th. In the application for resignation the appellant has shown that he had to go to his village on urgent work and therefore he was tendering resignation. He had further requested that he may not be charged one month pay in lieu of notice/resignation and that the loan against him may be written off. Exh. R-2 shows that his resignation was accepted but his request for dispensing with notice pay and writing off loan was refused. It is argued by Mr. M.M.
Jeelani that the resignation, if any, was accepted subject to the conditions of the recovery of the loan and amount of notice pay which admittedly had not been recovered therefore this resignation could not be deemed to have been accepted. I am afraid, I am unable to agree with him. The reading of Exh. R-2 shows, that the resignation was accepted but his other requests were rejected. It shows that these were two separate orders. It could not be said, that acceptance of resignation was subject to recovery of loan and notice pay or that such recovery were condition precedent to the acceptance of the resignation.
10. To sum up the evidence, the resignation is on paper which admittedly bears the thumb-mark of the appellant and the letter of acceptance of resignation also admittedly bears his thumb-mark in token of receiving acceptance letter. His contention that his thumb-impression was obtained on blank paper at the time of employment is not substantiated or proved by the evidence on record. It may also be pointed out that in the grievance notice Annexure 'A' it was not alleged by the appellant, that his signatures or thumb impression were taken on the blank papers by the respondents. Similarly his contention that he was removed from service as on 6-9-1986 when Seth Iqbal asked him to settle the accounts becomes unbelievable in view of the fact that he worked on the next day. Besides there is no evidence to show as to what authority Seth Iqbal had in the mill.
11. Keeping in view the evidence produced by both the parties, I am of the view that the appellant has failed to prove, that he did not tender resignation and that he was refused entry in the mill or that his services were terminated because of displeasure of Seth Iqbal. I, therefore, dismiss this appeal.