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Appeal No. MN‑343 of 1984, decided on 12th May, 1985.

‑‑‑Ss. 25‑A m 38(3)‑‑Railway employee a Senior Commercial Assistant (Goods) claiming promotion as S.T.E.‑‑Labour Court accepting grievance petition for being considered for promotion as such‑‑Promotion depending upon condition of having qualified in coaching and option to work as S.T.E.‑‑No evidence to prove that petitioner was qualified in coaching or of having opted to be appointed as S.T.E.‑‑Labour Court, in circumstances, held, erred in accepting grievance hence order of Labour Court set aside by Appellate Tribunal dismissing grievance petition.

Gulzar Ahmad Alvi for Appellant.

Date of hearing: 15th April, 1985.

The decision, dated 25‑4‑1984 passed by the learned Presiding Officer, Punjab Labour Court No. 9, Multan has been challenged whereby the grievance petition of the respondent for being considered for promotion as S.T.E. was accepted.

2. A settlement was arrived between the union and the appellant according to which it was resolved that 51% posts of S.T.Es would go to Goods Clerks and 49% to Parcel Clerks. The grievance of the respondent was that the settlement was implemented by the appellant so far as it concerned the Goods Clerks only. It has been argued by the learned counsel for the appellant that the respondent got promotion in his own category and his claim is that according to 10 quota, he was entitled to be promoted from the post of Commercial Superintendent as S.T.E. But the condition is that the claimant should have qualified in coaching. The proposition is not disputed by the respondent. The respondent filed two affidavits Exh. P.3 and Exh. P.4 of two persons serving in Karachi to the effect that the respondent had qualified in coaching. But no certificate of qualification has been produced. The respondent migrated to Pakistan on the partition of the sub‑continent, therefore, he contented himself by producing two affidavits mentioned above. Since the appellant had no opportunity to cross‑examine the two persons whose affidavits were produced by the respondent, he said affidavits have no evidentiary value. Since the author of affidavits Exh. P.3 and Exh. P.4 are alive they could be examined as witnesses. So the learned Labour Court has wrongly relied upon the said two documents. There is some circumstantial evidence also which goes in favour of the appellant. The grade of the appellant according to Exh. R.4 was 60‑‑120 and if he had qualified in coaching his grade would have been 68‑‑120. The representative of the respondent has not been able to meet this argument. Card 7 is on the record but the learned representative of the respondent has not been able to show any entry in the said document to the effect that the respondent had qualified in coaching. Needless to say that such cards are prepared from the service record or on the basis of documents supplied by the employee concerned. Since the respondent migrated from India his service record remained there and is not available. The inference is irresistible that card was prepared according to the information given by the respondent. No doubt the declaration is not on the record but it was the duty of the respondent to get it produced or to prove by some other evidence that he had qualified in coaching. The other argument of the learned counsel for the appellant is that even if it be admitted for the sake of arguments that the respondent had qualified in coaching, he could be appointed as S.T.E. if he had given option to that effect. Necessity of giving option is an admitted fact but there is no evidence that option was given by the respondent. So this is other reason, which weakens the case of the respondent. The learned lower Court did not advert to this aspect of the case and thus fell in error in accepting the grievance petition of the respondent.

3. As a result of the observations made above, I accept the appeal and setting aside the impugned decision of the learned lower Court, dismiss the grievance petition of the respondent.

A. E. Appeal accepted.

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