MUHAMMAD MOIN WARSI Versus DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, RAWALPINDI

This is an appeal directed against the decision dated 20‑12‑1986 recorded by learned Presiding Officer, Punjab Labour Court No.2, Lahore where by the respondent' has been directed to be re‑instated in service with back benefits.

2. The respondent was a driver and on 18‑6‑1985 his services were terminated. Copy of the order of termination has not been brought on the record. It is, therefore, not known what were the grounds of removal from service. Even in the written statement the grounds of termination of service have not been disclosed. No arguments have been led by the learned counsel for the appellant before me on the point. Previously also the learned lower Court had directed the re‑instatement of the respondent but on appeal the case was remanded inasmuch as only the counsel for the respondent had made statement tendering in evidence certain documents and the respondent was not put into the witness‑box.

3. The learned counsel for the appellant has argued that the service of the grievance notice has not been proved inasmuch as neither the original grievance notice alleged to have been sent was produced nor original postal receipt and A.D. receipt were brought on the record and in stead photo copy of the‑ postal receipt was tendered which was taken in evidence subject to the objection of the learned counsel for the appellant. The objection of the learned counsel for the appellant with regard to Exh. P. 1 was that the document was in admissible in evidence. With regard to the postal receipt Exh.P.2 the objection was they it was not the original receipt. With regard to Exh.P.3, Exh. P.4 and Exh.P.5 the objection was that they appeared to have been obtained and produced late. So far as copy of the grievance notice Exh.P.4 is concerned, only the said could be produced, because according to assertion of the respondent for original had been sent to the appellant. Since the objection of the appellant was that no grievance notice had been served, it was unnecessary to call the original notice from the appellant. So EXh.P.1 A was rightly admitted in evidence. No doubt, postal receipt Exh.P.2 is photo stat and not the original but the original is with the respondent who has shown to me during the arguments. It, therefore, does not appear that the photo copies are bogus and not of the original. It would have been better if the original receipt had been produced but since originals are with the respondent there appears to be no reason to discard photocopy of the postal receipt. Exh. P. 3 to Exh. P. 5 prove that the grievance notice was actually delivered to the addressee. The objection that they were obtained late is not well‑founded. Learned counsel has said that the officer who had issued the certificate of the delivery of letter should have been examined but this objection was not raised when the document was tendered. Now it is too late to raise such an objection. If this had been raised at the time the document was tendered, the respondent would have an opportunity to call the said officer. Learned counsel for the appellant has cited 1978 P L C 746. The date of the endorsement was 4th of June whereas the seal affixed on the postal stamps were bearing the dates as 11 and 13 of June. In these circumstances it was held in the said ruling that in the absence of the evidence of the postmaster the document appeared to be forged. In the present case the postal receipt or the certificate Exh.P.5 is a forgery, therefore, examination of the clerk who issued the postal receipt was not necessary. In cases where Evidence Act applies it may be insisted that the author of the document may be produced but in labour cases Evidence Act is not applicable. In 1979 P L C 506 photocopy of the registration was not accepted in evidence. A resignation is a private document and where the assertion is that no resignation was committed, production of the original is necessary. But the postal receipts are issued in the discharge of official duties by the post office which department of the Government; therefore, without calling the author the documents are admissible in evidence. P L D 1973 S C 160 and PLD 1969 SC 477 have also been cited. In the former ruling copies of the non‑judicial record were; not accepted in evidence on the ground the signatures and handwriting of the authors had not been proved. No doubt, in the present case Photostat copies have been produced E but since the originals are with the respondent their photocopies which were issued in discharge of official duties, are admissible in evidence as discussed above. So the case of the respondent is not hit by the ruling cited by the learned counsel for the appellant. The learned lower Court, therefore, relied upon the above‑mentioned document and rightly found that grievance notice had been served.

4. However, the learned lower Court has wrongly allowed back benefits to the respondent. The respondent did not urge in his statement that he had, from the date of termination of service, remained jobless. It is in the special knowledge of the worker whether he remained jobless or earned anything. He is not required to produce) negative evidence but it is necessary for him at least to assets that he remained jobless and in cases where he does so, the onus shifts upon the employer to prove that the said worker had remained employed elsewhere. Since the respondent did not make such an assertion he is not entitled to any back benefits.

5. As a result the appeal is accepted partly and maintaining the direction of reinstatement the impugned order is modified by disallowing back benefits to the respondent.

M. Y.H./317/Lb.P

Appeal partly accepted.