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Appeal No. MN-424 of 1984, decided on i2nd December, 1985,

---Ss. 37 a 38--Appeal--Additional evidence, could not be produced as of right at appellate stage--Appellate Tribunal can summon any evidence--Respondent and appellant requesting for permission to lead additional evidence on date fixed for final order--Additional evidence sought to be produced by respondent not relevant for decision of appeal--Application of appellant not disclosing nature of additional evidence to be produced--Applications of respondent and appellant, in circumstances, were rejected.

---Ss. 37 & 38--Appeal--Amendment of written statement at appellate stage after arguments so as to raise plea of limitation--Limitation point neither raised in written statement nor at a later stage before Labour Court--Appellate Tribunal, in circumstances, declining to allow amendment of written statement at such belated stage.

--- Retirement--Railway employee applying for L.P.R. before reaching supernnuation age but withdrawing same before being allowed same- Employee, held, could not be retired when he had withdrawn application for premature retirement.

---S-. 2(a) & (b)--"'Workman"---Railway employee, sought to be ousted from- definition of workman--Onus on party seeking -application of exceptions (a) and (b)--No evidence lead to support objection--Plea, in circumstances, was rejected.

1982 P L C (C.S4 81 distinguished.

Gulzar Ahmad Alvi for Appellants.

Ch. Nazir Hussain and Muhammad Ibrahim for Respondent.

Date of hearing: 15th December, 1985.

The decision, dated 10-6-1984 recorded by the learned Presiding Officer, Punjab Labour Court No.9, Multan has been challenged, whereby the retirement order passed against the respondent was set aside and he was directed to be re-instated in service with back benefits, directing the respondent to refund the retirement benefits, if any received by him.

2. The respondent had supplied on 3-11-1981 for leave preparatory to retirement vide Exh.R-1. On 17-12-1981 the respondent sent reminder Exh.R-2. L.P.R. was sanctioned on 14-3-1982 by the D P O vide order Exh.R-4 and with effect from 2-4-1982 the respondent was allowed to go on L.P.R. vide Exh.R-7. He had on 3-2-1982 made an application for withdrawal of his earlier application for L.P.R. Copy of the application is Exh.P-1. The respondent made an application for additional evidence to this Tribunal on 13-5-1985 the date fixed for final orders. The learned counsel for the appellants did not oppose the application by submitting any reply and instead applied for additional evidence on 27-5-1985 without mentioning what evidence was to be produced. No copy of original document was produced alongwith the application, nor it was mentioned that any witness was to be examined in additional evidence. Besides the petition for additional evidence, an application for amendment of the written statement was also given without putting any date. The objection sought to be taken in the written statement is that the grievance petition was time-barred. So far as the respondent's petition for additional evidence is concerned, the document to be produced is copy of the order of the Divisional Superintendent, Pakistan Railways dated 24-6-1984 re-instating the respondent in service and asking him to refund Rs.13,548 received by him as retirement benefits and a document showing that the amount was refunded. The applications of the parties for additional evidence are misconceived. So far as the application of the respondent is concerned, the documents sought to be produced in evidence will not in any manner advance the case because in the order referred to above it is mentioned that the order was passed without prejudice to the appeal lodged by the appellants in this tribunal. So the order of re-instatement and directing the respondent to refund what he had received, do not operate as an estoppel. So the evidence is not relevant and thus not required for the decision of the appeal.

3. So far as the application of the appellants for additional evidence is concerned, it is meaningless. Needless to say that at the appellate stage no evidence can be produced as of right. If the appellate Court requires any evidence, it can summon the same. Since in the application the evidence sought to be produced has not been disclosed, I am not in a position to say if the same is or is not required for the proper decision of the appeal. If some document is to be produced, the same has not been attached with the application. If some witness is to be examined, his name and particulars and the substance of evidence, which he is required to give, are not mentioned. So the applications for additional evidence given by both the parties are hereby rejected.

4. So far as the prayer to amend the written statement to raise the plea of limitation is concerned, it is too late for the appellants to make such a request. After the case was fixed for orders and after the respondent had made application for additional evidence on a different point, the appellants applied for amendment of the written statement. It is clear that neither at the time of filing of written statement nor a later stage when the case was pending before the learned lower Court such a request was made. The point of limitation did not strike the learned counsel even when he prepared the case for arguments. Now if such a prayer is allowed, the case shall have to be remanded for allowing opportunity to the respondent to show if the grievance petition was within time. So I decline to allow the amendment of the written statement at this very much belated stage.

5. So far as the merits of the case are concerned, it has been argued that no application, copy of which is said to be Exh.P-1, was received and that Exh.P-1 is a fictitious copy. The respondent had stated before the learned lower Court that he had presented the said application to the Divisional Superintendent and then to the receipt clerk. If in reality no such application for withdrawal of the prayer for re-instatement had been given, the Divisional Superintendent and the receipt clerk could be easily examined and the receipt register produced in the learned lower Court to rebut the statement of the respondent, but no evidence in rebuttal was produced and the learned counsel for the appellants closed the case. Application, copy of which is Exh.P-1, was given before the L.P.R, was sanctioned, so the respondent could not be retired as he had not reached the age o superannuation and he had withdrawn his application for premature retirement.

6. On the point of workman, the learned counsel for the appellants has cited 1982 P L C (C.S.) 81 but the same is not relevant. The definition of workman given in section 2 (n) of the Workmen's Compensation Act was under consideration but in the present case the definition given in section 2(xxviii) of the Industrial Relations Ordinance, 1969 is relevant. According to the definition, every person who is not covered by the definition of 'employee' is a workman, except those who fall within exceptions (a) and (b). As the respondent is not said to be a Manager, so exception (a) is not to be considered. So far as exceptional (b) is concerned, it has two conditions. One is that duty should be mainly supervisory and the other is that the wages should be more than P.M. Rs.800. As the appellant wanted to apply the exceptions, so onus was upon it to show that the duties were supervisory and pay was more than Rs.800, but there is not an iota of evidence on the record. No duty roster was produced. No witness was examined to show what were the duties of the respondent. No document of the work done by the respondent was produced such as leave applications sanctioned by him if any and reports made against the recommendation made in favour of any person. No evidence is on the record that the respondent had any subordinate. The respondent may be exercising supervisory powers but since there is no evidence to that effect on the record, it is difficult to hold that he is ousted from the definition of workman.

7. As a result, the, appeal fails and is consequently dismissed.

A.E. Appeal dismissed.

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