GHULAM RABBANI Versus ASADULLAH WOOLLEN MILLS (PVT.) LTD., KARACHI

DECISION

This appeal calls in question the order of the Labour Court dismissing the petition filed by the appellant for his reinstatement under section 25‑A, I.R.O. The facts forming the background in brief are as follows:‑

The appellant was working as a Revematic Operator with the respondent‑Mill since 6‑5‑1989. It is alleged that he was being denied bonus and other benefits under the Labour Laws, and used to be remonstrating about the same with the respondent, off and on. This had displeased them and when on 17‑4‑1990 as usual he had gone to report for duty he was gate‑stopped. At this turn of events he had sent the grievance notice to the respondent on 24‑4‑1990 which was replied to, but with no indication of redressing his grievances. He had therefore riled the petition before the Labour Court.

2. It was stated in the Written Reply filed by the respondent that the petitioner of his own free will and acceed had submitted his resignation on 22‑4‑1990 which had been accepted. All his dues and claims had been duly met for which proper receipts were obtained. The suggestion of his removal under the circumstances was unwarranted. It was also alleged, that the petition was barred by time.

3. The appellant apart from himself examined Waheed Ansari. Khawaja Zaheer Riaz the then Manager of the respondent‑Mill had filed his Affidavit‑in‑Evidence but it appears that he had become too ill, and was not made available for cross‑examination. Be that as it may, the Affidavit‑in‑Evidence has therefore to be discarded from consideration and only the evidence of Nazar Hussain the Foreman of the Mill is there on behalf of the respondent.

4. The Labour Court found that the grievance notice was within time but accepted the version of the respondent that the appellant had tendered his resignation which had been accepted, and therefore dismissed the petition.

5. A contention in muted tones was raised during the arguments that since the person signing the Written Reply was not examined in the Court, therefore the version to be found therein has to be totally discarded from consideration. Reference was made to the case of Mst. Khairun Nisa v. Malik Ishaq and others PLD 1972 SC 25. However the argument was not developed. Looking to the importance of the point involved, notice was issued for further hearing. The learned counsel for the appellant did not turn up, but I had heard Mr. Sher Afgan the learned counsel for the respondent and also '.Messrs Sabihuddin, Ghulam Dastagir, Muhammad Tasnim, Masood Ahmed Khan, Advocates, and also Mr. Abdul Majeed, a representative.

6. Mr. Sher Afgan had taken me through the case of Mst. Khairun Nisa and others v. Malik Muhammad Ishaq and others and submitted that the observations made therein were in a suit for specific performance of contract of sale of immovable property. Section 27(b) of the Specific Relief Act was to be construed and it reads as under‑‑

"27. Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against--

(a) ...........................................................

(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract.

(c) ............................................................

(d) ..............................................................

(e) .............................................................

The following observations then came to be made:

"It will be noticed that under this provision of law, a contract can be specifically performed against any other person claiming title to the property arising subsequently to the original contract but an exception has been made in the case of transferee for value who has paid him in good faith and without notice of the original contract. It is, therefore, for the transferee to prove that he was a transferee in good faith and without notice of the original contract for valuable consideration."

Reference had been made in the case to the decision in Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1959 Pesh. 81 where it was observed that "it is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf and to submit to cross‑examination. His non-appearance as a witness would be the strongest possible circumstances going to discredit the truth of his case:"

7. Unfortunately the original purchaser had died during the pendency of the suit before his evidence was recorded, but the evidence by the parties was fully considered. About the Written Statement it was observed that it was on oath and not verified and therefore could not be treated as evidence in the case.

8. The reference of this case in Khawaja Auto Cars Limited v. Muhammad Yousuf and others 1991 SCMR page 2223' on page 2259 of the report also shows that other piece of evidence would be there, as will be clear from the following.

"The finding of the learned Trial Court and the first Appellate Court on the question that Ramzan Khan was the statutory tenant was not based on the above Written Statement but founded that other evidence inter alia referred to by the learned first Appellate Court in the above quoted portion of the judgment."

9. Mr. Sher Afgan learned counsel for the respondent submitted that there could be situations where a Written Statement had not been filed at all, or where even after the filing of the Written Statement the proceedings were ex parte. But these do not stop a defendant to join the contest on the merits of the case.

10. Mr. Sabihuddin contended that there was no law to the effect that the person signing the Written Statement must necessarily enter the witness‑box. That was also the stand of Mr. Abdul Majeed. I agree with their contention that the evidence and Written Statement are two different things and the gap created can normally be filled up by other evidence.

11. It is also worth considering that the Labour Courts though having the trappings of the regular Law Courts of the land have to function in an altogether different setting. Under section 25(4) of the IRO where a matter is taken to the Labour Court, it is enjoined to give decision "within 7 days from the date of the matter being brought before it. Under section 38(4) the Appellate Tribunal "shall follow such procedure as may be prescribed". If there was a procedure prescribed, then the existence of the latter provision 38(4) can never be justified. Nor could it be imagined that a case governed by Civil Procedure Code could be disposed of within this time, where the Government is entitled three month's time for the filing of the Written Statement. The Evidence Act is also not applicable in the proceedings before the Labour Court. So there is no room for all these technicalities and rigid applications of these principles, and if there is a witness who adopts the contents of the Written Statement, his evidence has to be considered on merit. The Legislature in its wisdom did not want the litigants have to get enmeshed in these legal cocoons, when in the proceedings, even the appearance of a lawyer can be possible, only with the permission of the Court, and the representatives appearing for the parties, specially the workmen have got a nodding acquaintance with the abracadabra of law.

12. Having said that much, let us look to the evidence before us. There are two rival versions as mentioned earlier. Either the appellant had been gate-?stopped or resigned and parted company with the respondent of his own free will and accord. One of the two parties under the circumstances is not coming out with the truth, and to my mind, it is the appellant who is speaking with two voices. He began by saying that he was a totally illiterate person and had sent his applications for appointment and leave with the thumb impression affixed thereon. However in his cross‑examination he had to admit that the National Identity Card obtained by him bore his signature. The reply given was that he had done so with the assistance of a helper who was holding his hand. There is no compulsion under the law that one should sign on the Identity Card. That simply could not be with our rate of literacy. But it is very much there and there is no thumb impression. Even his application for employment has been placed on the record. That also is duly signed by him. Then there are a number of documents by way of receipts of various payments at the time of the acceptance of the resignation. All these are also signed. There are also applications for leave with signatures and all these signatures tally with the signature on the Identity Card. This is what the learned Presiding Officer had to say after comparing the various documents and this is what I am led to conclude for myself. We are entitled to form our opinion. Any way the appellant could have examined a handwriting expert and he has failed to do so. Therefore there is no occasion to disbelieve the version of the respondent that it was the appellant who had left them after collecting all his dues from them.

14. In the result I will uphold the order and dismiss the appeal.

H.B.T./2140/Lb.S ?????????????????????????????????????????????????????????????????????????????? Appeal dismissed.