' This is an appeal under section 37(3) of the I.R.O., 1969, against the order dated 8-10-1998 passed by the learned Presiding Officer, Sindh Labour Court No,V. Karachi, whereby the appellants'
Applications No,181 of 1991 under section 25-A of the Industrial Relations Ordinance, 1969, was allowed, ordering reinstatement of the respondent with back benefits.
2. The facts, briefly stated, are that the respondent was employed as Bell Boy in the appellant's establishment. On or about 5th of November, 1991 he is alleged to have tendered his resignation addressed to the Personnel Manager. The respondent, however, appears to have sent a message by telex the same day which was received on the night of 6th of November at 1:49 hrs. To the appellant Hotel alleging inter alia, that the resignation was obtained from him under "durace", "fear" and "threat" of being prosecuted by the police. He, therefore, withdrew the said resignation. After about 15 days respondent served grievance notice, dated 28th of November, 1991 and, thereafter, the respondent filed his Grievance Petition in the Labour Court No, V. Karachi, which was allowed, as aforesaid.
3. The applicant (respondent hereinunder) examined himself as his own witness and the appellant examined two witnesses M/s. Dawood, Assistant Personnel Manager and Muhammad Tasleem, Assistant Front Manager. They were cross-examined by the respective Advocates of the other side.
Earlier one Mr. Chawala, Personnel Manager had filed his affidavit-inevidence but since he left the employment, Mr. Dawood filed his own affidavit-in-evidence on behalf of the appellant's Hotel.
4. Mr. Muhammad Hamayun, learned counsel for the appellant in support of his appeal raised the following plea:
(i) That the respondent tendered his resignation on his free-will and volition and the telex was an afterthought.
(ii) That the telex, even otherwise, was not received by the appellant.
' Mr. Saghar, learned counsel. For the respondent, on the other hand, submits that according to the case of the appellant the respondent was on duty on 5-11-1991 during 23 hours to 0800 hours, when he submitted the resignation to the appellant. According to appellant, therefore, 5th of November, 1991 comes to an end by 2400 in the night. It is an admitted position that telex was received by the appellant on 6th of November, 1991 at about 1.49 hours (the same night). Reference was made to para.2 of the written statement and para.7 of the affidavit-in-evidence of appellant's witness Dawood. The resignation, submitted at night in between 5th and 6th of November, 1999 and withdrawn the same day just after an hour or so, cannot be deemed to have been accepted in normal course, because the office of the appellant starts at 9.00 a.m. In the morning. The resignation bears no inward number and no signature of the Shift Incharge to whom the resignation was to be handed over (refer cross-examination of the appellant witness Dawood at page-109 of R&P). The resignation does not contain any endorsement of acceptance. The alleged acceptance was sent by registered post. The postal receipt or acknowledgement due was not produced by the appellant to show the exact date and time, when the acceptance was conveyed to the respondent. There appears to be an endorsement on the resignation (with no signature of designation) for comments from Front Office Manager. The resignation also contains an endorsement that the notice period may be waived, but there is no actual order of waiver or acceptance on it.
6. A perusal of Standing Order 12(1) of the Standing Orders Ordinance, 1968 will show that appointment is terminable either by the employer or by the employee with one month's notice or pay in lieu thereof, on either 'side. The resignation, taken on its face value, was not in strict compliance of Standing Order 12(1) of Standing Orders Ordinance, 1968, as it did neither mention tendering nor waiving of one months salary. The facts and circumstances also go to show that resignation was not tendered by the respondent on his free-will. For this I am supported by a decision of the Hon'ble Supreme Court reported as Muhammad Munirul Haq v. Muhammad Lateef (1992 SCM R 2135) wherein it was observed that totality of the circumstances have to be taken into consideration for drawing a conclusion whether the resignation was voluntary or not. In any case, the resignation having been withdrawn within a couple of hours, without receipt of the communication of the acceptance by him stood withdrawn. In this respect I may refer to the provisions of the Contract Act relating to offer and acceptance and the principle that an offer can be revoked before its acceptance is communicated to him. In the instance case the resignation was withdrawn by telex. It does not contain any endorsement that it has been accepted by the employer. It contains only a recommendation of the waiver of the condition of the notice by some officer.
7. For the above discussion, it is manifest that the resignation tendered by the respondent, was not voluntarily and of his free-will. Even otherwise, the same having been withdrawn by a telex dated 5-11-1991 received in the office of the appellant on 6th November, 1991 at 1.49 hours, which is apparent from the telex itself the appellant has wrongly described it to be a telegram), the resignation seems to have been withdrawn before its acceptance was conveyed to the respondent. The finding of the learned Labour Court, on the point, is upheld. The order of the reinstatement of the respondent, is, therefore, maintained. The respondent to be reinstated within one month from the date of this judgment.
8. Yesterday, for want of time, I had allowed one day to both the counsel for the parties to address me on the question of back benefits. Mr. Saghar, in this respect, refers to para.11 of the grievance petition to the extent that the respondent was working no where and was unemployed and same has been re-iterated by him in para.13 of his affidavit-in-evidence. No question was put to him by the learned counsel for the appellant on this aspect of the matter. Mr. Humayun, however, submitted that since the respondent is an unskilled worker he might have been busy with odd jobs and earning something.
9. The sum. Total of the law, on the point of back benefits, laid down by our Superior Court, seems to be that if the action of the employer in terminating or debarring from continuing with his job, by gate-stop or otherwise, is illegal and mala fide, the back benefits must follow provided it is established to the satisfaction of the Court that the worker has not been engaged in any gainful employment.
10. But there has been inordinate delay in the disposal of the case in the Labour Court. It is noticeable that the grievance petition was filed on 15-12-1991 and the case was disposed of on 8- 10-1998, in about seven years" time (instead of seven days as provided in section 25-A of the I.R.O., 1969 itself). I addressed myself to a question as to who is responsible for the delay, the appellant or the respondent or the Court too, if it remained vacant for some time. I, therefore, asked the counsel for the parties for the number of adjournments sought by them.
11. I am conscious of the fact that it has also been held in some case by a learned Ex-Chairman of this Tribunal that "mere delay" in the disposal of a case by the Labour Court will not by itself be sufficient to deprive the worker from the back benefits but, in my humble view, if there has been an inordinate delay in the disposal of the case to which the worker has himself being a contributory, he must not be allowed to reap the fruit in the shape of back benefits, for his own acts and misdoing in delaying the matter inordinately. I also asked the Reader of this Tribunal to look into the Diary Sheets so as to find out the position of adjournments sought by the employer and worker.
According to his calculation 15 adjournments were sought by the worker and 31 adjournments were sought by the management besides 41 adjournment were obtained jointly by consent of both the parties. Besides the case was adjourned on six dates as the learned Presiding Oficer was on leave.
In view of the above, I feel inclined to grant 50% back benefts to the worker/respondent, being contributory to 50% adjournments approximately.
12. In result, the decision of the learned Labour Court ordering the respondent to be reinstated is upheld. However, the order as to the awarding full back benefits is modified to the extent of 50% only. The appeal is disposed of accordingly.
Miscellaneous No, 102 of 1999.
1. It is an application filed in this Tribunal in or about March, 1999 for release of the current monthly salary, notice of which was served on the appellant it was ordered by me that this application will be heard alongwith the main appeal. Since the main appeal has been disposed of, I allow the said application and direct the office to pay the current salary deposited in this Tribunal, by the Registrar to the respondent by cross payees' account cheque in favour of the respondent on proper verification.
14. The learned Advocates are, however, directed to sit together and calculate the amount of back benefits and file a joint statement as to the amount of 50% back benefits as allowed to the respondent. Call up on 17-9-1999 for the said purpose.