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Appeal No. LHR-453 of 1985, decided on 22nd September,1985.
West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--
---S. 2(i)--Workman--Whether or not employee a workman--Onus to prove--Employee holding post involving clerical duties (shop clerk)--Onus to prove that employee was not a workman, in circumstances, held, upon employer and plea in written statement without any evidence not sufficient to establish otherwise.
Malik Bashir Ahmad for Appellant.
Date of hearing: 17th September, 1985.
The decision, dated 9-7-1985 recorded by the learned Presiding Officer, Punjab Labour Court No. 2, Lahore has been challenged whereby the order of dismissal of the respondent was set aside and it was held that he had resigned, with effect from 18-8-1983.
2. The respondent had sent conditional resignation laying certain aspersions against some officer and showed his inability to serve at Kot Lakhpat and requested for transfer. He was neither transferred nor was intimated about the fate of the resignation. The respondent thus did not do his duty. He was ordered, vide Exh. R.3, dated 1-9-1983 to send unconditional resignation if he did not want to remain in service. The respondent did not reply. He was thus charge-sheeted for absence from 17-8-1985 to 28-8-1985. Since the respondent had sent resignation, he could not be treated as absent for any period upto the delivery of letter Exh. R.3, dated 1-9-1983. Since he was not charge-sheeted for absence for the period after the delivery of letter Exh. R.3, the whole proceedings started against him were illegal. Absence from 17-8-1983 to 28-8-1983 did not constitute misconduct.
3. It has been argued that since the learned lower Court has held that after sending resignation the respondent ceased to remain employee of the appellant, so he could not be dismissed, he could not bring petition under section 25-A. The argument is ex facie fallacious. Since the appellant treated the respondent as its employee and went to the extent of dismissing him, he rightly challenged the order.
4. The other point argued is that the appellant was not a workman as he did not produce any evidence with regard to his duties. The respondent was not holding such a post that onus would have been upon him to prove that he was a workman. His designation was not that of an officer or supervisor. Learned counsel has argued that the respondent was a store-keeper. This is factually wrong. Even if it is so, every article that is brought to and kept in the store is entered in the register. Likewise every article that is taken out of the store is removed from the list of articles. In the absence of evidence to the contrary, it can be said that the person who keeps the articles in safe custody has to make such entries. The onus was thus upon the appellant to prove his contention that a store-keeper is not a workman. As a matter of fact this is wrong that the respondent was a store-keeper. He was a shop clerk. The respondent described himself in his resignation as shop clerk. In letter Exh. R.3 sent by the appellant to the respondent the latter is mentioned as shop clerk. Obviously, a shop clerk has to do clerical work. So onus was upon the appellant and since no evidence was produced the plea taken in the written statement does not stand established.
5. As a result, the appeal fails and is dismissed in limine.
A.E.
Appeal dismissed.
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