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Appeal No‑RI‑39S of 1985, decided on 10th December. 1985.

‑‑‑Ss. 25‑A, 36 & 38(3) ‑Practice and procedure‑‑Onus of proof‑ Petitioner claiming confirmation in service‑‑Passing of Departmental Examination a requirement of confirmation‑‑Petitioner asserting having passed such Examination‑‑‑ Certificate not produced‑‑Respondent in written statement contending that requisite Examination, not passed by petitioner‑‑Labour Court dismissing petition asking petitioner to produce requisite certificate before respondent‑‑Order of Labour Court, in circumstances, set aside and case remanded by Appellate Tribunal‑‑Held: Onus was upon petitioner to prove passing of Examination and Labour Court should have decided case on merits after asking petitioner to produce documents /evidence.

Ch. Sadiq Muhammad Warraich for Appellant

Malik Hamid Mahmood for Respondents.

Date of hearing: 7th December, 1985.

The decision, dated 11‑6‑1985 recorded by the learned Presiding Officer, Punjab Labour Court No.6, Rawalpindi has been challenged, whereby the grievance petition of the appellant for his confirmation was dismissed.

2. The appellant was appointed as porter in 1976 as alleged by him vide Exh.P‑1. He was not confirmed although his juniors are alleged to have been confirmed. He, therefore, served a grievance notice followed by the institution of the grievance petition. The only ground on which the learned lower Court has dismissed the grievance petition is that the appellant did not supply the respondent with the documents demanded in reply to the grievance notice. The contest between the parties is on the point if the appellant has passed the departmental examination or not. Since in the written statement it was contended by the respondents that the appellant had not passed the said examination, the case should have been decided by the learned lower Court on merits one way or the other. The appellant should have been ordered to produce relevant documents in the Court, instead of dismissing his petition and asking him to produce documents before the respondents. Since the respondents deny the factum that the appellant has passed the departmental examination, the onus was upon the appellant to prove the affirmative. It was the duty of the appellant to produce the documents in support of his case. Since the learned lower Court has not recorded finding on the merits of the case, I cannot express any final opinion on the matter.

3. As a result, the appeal is accepted and setting aside the impugned decision of the learned lower Court, the case is remanded with the direction that after giving further opportunity to the parties to produce relevant evidence, the case be decided on merits.

A. E

Appeal accepted.

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