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Appeal No. LHR‑593 of 1984, decided on 8th May, 1985.

‑‑‑Resignation‑‑One month's pay in lieu of notice‑‑Claiming of‑‑Right of employer‑‑Waiving of such right‑‑Not an abnormality‑‑Mere fact that notice pay not claimed and tender accepted on same date on which tendered‑‑Not sufficient to show that tender was not voluntary and not spontaneous.

‑‑‑S. 2 (xxviii) (b)‑‑Workman‑‑Security Inspector‑‑Checking and supervising work of security guards under him‑‑Ousted from definition of "Workman".

P L D 1973 Lah. 593 and 1973 P L C 355 distinguished.

Muhammad Zaman Qureshi for Appellant.

Javed Altaf for Respondent.

Date of hearing: 30th April, 1985.

The decision, dated 10‑9‑1984 'recorded by the learned Presiding. Officer, Punjab Labour Court No.2, Lahore has been challenged, whereby the grievance petition of the appellant for his reinstatement in service was dismissed.

2. The appellant was a Security Inspector. He had resigned from service on 23‑9‑1982 vide resignation Exh. R.5. The plea taken by the appellant before the learned Lower Court was that he had given resignation on account of a telephonic message of Major Muhammad Ashraf, Security Officer. Major Muhammad Ashraf was examined by the respondent as R.W.I and he deposed that he had never asked the appellant to resign. R.W.2 and R.W.3 testified that no one asked the appellant to resign and that he had given resignation of his own accord. The appellant appeared as his own witness and examined Muhammad Hussain, P.W.2 and Afzal Hussain Zaidi, P.W.3. The evidence produced by the appellant is discrepant. He stated that Major Muhammad Ashraf had asked him on telephone to give resignation. Statement of P.W.2 is that he had been checked at the gate and was found to have a pass of 12 bags. He was apprehended on the plea that he had in his possession 14 bags while the pass was for 12 bags only. He further stated that Major Muhammad Ashraf directed the appellant to report against him (the witness) but he refused on the ground that the pass was for 12 bags and not 14 and, thereupon, Major Muhammad Ashraf compelled the appellant to tender resignation. The appellant stated that he was asked by Major Muhammad Ashraf to hold inquiry against Muhammad Hussain, that he recorded the statement of Muhammad Hussain but he refused to sign on the proceedings and some of the workers intervened and took away the said person and that thereupon Major Muhammad Ashraf asked him (the appellant) to resign. P.W.3 repeated the story told by P.W.2 by saying that Major Muhammad Ashraf had asked the appellant to report against Muhammad Hussain but he refused. Holding an inquiry or making a complaint against a person are different things and cannot be confused. The story put forward by the witnesses, therefore, was rightly disbelieved by the learned Lower Court. Apart from it the evidence of the appellant was controverted by the three witnesses examined by the respondent.

3. The learned counsel for the appellant has argued that since on the same date on which resignation was given it was forwarded to the competent authority and was accepted, it shows that the appellant did not tender the resignation of his own free will. He has also argued that although the appellant had not asked for waiving the right of the recovery of one month's pay in lieu of notice yet the Management waived the same. The line of argument of the learned counsel in this respect is that since the appellant had not asked for the acceptance of resignation immediately and had not asked for waiving the right of the recovery of one month's pay in lieu of notice, the Management should not have accepted the resignation forthwith and if it had been postponed, the appellant may have withdrawn the resignation. The argument is devoid of force. It was the right of the employer to claim or not to claim one month's pay in lieu of notice and there was no abnormality in waiving the said right. The mere fact that the resignation was accepted on the same day when it was tendered was not sufficient to show that it was not spontaneous.

4. It has been argued by the learned counsel for the appellant that the learned Lower Court has wrongly held that the appellant is not a workman. Reliance in this respect has been placed upon P L D 1973 Lah. 593 and 1973 P L C 355. Both the rulings are distinguishable from the facts of the present case. The duty of the appellant was to check and supervise the work of 20 security guards working under him and admittedly his pay was Rs.1,201 P.M. He, therefore, fell in the mischief of exception (b) of section 2 (xxviii) of the Industrial Relations Ordinance, 1969 and thus was ousted from the definition of workman.

5. The last point argued by the learned counsel for the appellant is that the appellant was appointed by the General Manager but the resignation was accepted by the Personnel Manager, who was not competent. No appointment order was produced on the record. It was not stated by any of the witnesses examined by the respondent that the appellant had been appointed by the General Manager. No rule has been shown to the effect that the appointing authority of the appellant is General Manager. The plea thus has no force.

6. As a result of the observations made above. I do not find any force in the appeal and dismiss the same.

A. E. Appeal dismissed.

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