' This is an appeal under section 37(3) of the Industrial Relations Ordinance, 1969 against the order dated 9-3-1998 passed by the learned lab our Court No,VI at Hyderabad, on Grievance Application No, 15 of 1995.
2. The facts, briefly stated, arising out of the above appeal are that the respondent was employed as Helper in the appellant company. On 27-9-1994, the respondent submitted a resignation on the ground that for family problems he cannot continue with the job as such. While tendering the resignation, he requested the appellant company to waive the condition of one month's notice or tender one month's salary in lieu thereof. The appellant company, having accepted his resignation and waiving the condition for one month's notice paid all his dues amounting to Rs.10,577 in full and final settlement. After the expiry of about two months, the respondent served a grievance notice, as required under section 25-A(1) of I.R.O., 1969 alleging, inter alia that on 1-10-1994 when he came to attend the duty, he was gate-stopped. The company replied the said grievance notice vide letter dated 6-12-1994 stating inter alia, that respondent was no more in service after having tendered, voluntarily, his resignation dated 27-9-1994 and all his dues having been paid, there existed no relationship of employer and employee.
3. The respondent, then, filed an application under section 25-A of the I.R.O., 1969 on 22-1-1995. The learned Labour Court, after recording evidence of the parties, allowed the application ordering reinstatement of the respondent with full back benefits, by decision dated 9-3-1998 as aforesaid. It is against this decision, that the above appeal has been filed.
4. The learned Labour Court framed the following issues:--
(1) Whether the applicant tendered his resignation voluntarily? if so, whether he has accepted all his dues as full and final settlement of his claim.
(2.) Whether the application is not maintainable?
(3) Whether the applicant is entitled to reinstatement? if so, on what terms?
5. I have gone through the record, with the assistance of the learned counsel for the appellant. It is noticeable that the respondent has denied almost everything which was alleged by the appellant's counsel in cross-examination e.g. when he was confronted with the resignation itself, he denied his signatures as well as mark of thumb. He also denied the receipt of any payment and so the signature on the receipt. Signatures on application made by him for clearance certificate and so the receipt of clearance certificate issued by the Company and the payment voucher.
6. I asked the learned counsel, in view of the complete denial of all the relevant papers and signatures thereon by the respondent, why did he not make an application for summoning the Handwriting Expert as Court-witness. His reply was "it would have taken long time". This answer does not seem to be satisfactory as the case has already taken nearly four years, without the Handwriting Expert. He, however, admits to have realized his mistake and submits that either this Tribunal may call for the Expert or direct the learned Labour Court for the same. I think, it would not be proper on the part of the Tribunal to take down fresh evidence by itself as it will deprive the other side his right of appeal, which is a valuable rights, rather a vested right. Learned counsel stated at the bar that if the matter is referred to Handwriting Expert, he will abide by his opinion, but now, it is too late. The law helps vigilant and not the indolent.
7. Learned counsel for the appellant next contended that the respondent was not connected with any Industrial dispute. Contention is so baseless and without any force that attach no importance to it.
8. The onus of proof was solely on the appellant that Exhs.R.1 to R.6 bear signature/thumb- impression of the respondent. The appellant examined Abdul Karim Essani, Manager of the appellant Company, who, on his own admission, was not working as such in the Mill or had been employed in any other capacity in the Company. In the circumstances, it was all the more necessary that the appellant should have examined any other witness, who was conversant with the signature of the respondent or that the Company could have sought the signatures of the respondent compared with the disputed signatures by sending the same to Handwriting Expert, which they failed to do. The learned Labour Court was, therefore, justified in holding that this, having not been done, the appellant failed to prove that the respondent had voluntarily tendered his resignation and had received all the dues under full and final settlement. The learned Labour Court also noticed the fact that admittedly the respondent was on leave w,e,f, 12-9-1994 till 30-9- 1994. as such, there was no fun for him to come on 27th September, 1994 to tender the resignation, as observed by the learned Labour Court.
9. I inquired, Mr. Raees Mushtaq, learned counsel for the appellant as to the mode of payment of Rs,10,577. His reply was that it was paid in cash. Had a cheque been issued, which is generally done in Limited Companies, there would have been something to show that the payment was made to the respondent by depositing the cheque in the bank in his account, which has, again, not been done in this case.
10. The learned Labour Court also considered the question of back benefits where it was observed that, "admittedly the applicant is not gainfully employed anywhere, as such, he is entitled to reinstatement with all back benefits".
11. I, therefore, find no justification to interfere into the decision passed by the learned Labour Court, which is well-reasoned, discussing all aspects of the case, having come on record in evidence. The appeal is dismissed.
Miscellaneous No,79 of 1999
12. This application for stay, in view of the dismissal of the appeal, having become infructuous, is