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Case No. 18(41) of 1980, decided on 13th May, 1980.

‑‑‑S. 6‑‑Resignation tendered in exercise of option given to workers by establishment‑‑Non‑acceptance of such resignation due to exigency of work, held, would be illegal‑‑Whole concept of applicability of Act LIII of 1952 was defeated when management gave option to workers to submit resignations by a given date‑‑Establishment was directed that resignation of such worker be accepted, his dues be paid and necessary service certificate be issued in his favour.

Hamid Siddiqui for Petitioner.

Iqbal Afridi for Respondent.

This is an application submitted by Mr. Muhammad Afzal Haq, Technical Assistant Pakistan Machine Tool Factory, Landhi under the Essential Services (Maintenance) Act for acceptance of his resignation. The applicant has submitted that he was appointed as a Planner (Production Planning Department) in the Pakistan Machine Tool Factory in 1969 and that he was promoted as Supervisor in Grade 7 and worked in that capacity till 4th August, 1976. He has submitted that his wife has been suffering from heart disease for the last 8 years or so and in order to devote all his time for her treatment, he had to resign from the service of Pakistan Machine Tool Factory on 4th August, 1976 and in accordance with the terms of his employment he gave one month's notice but neither his resignation was accepted nor rejected nor he was relieved from duties or issued any service certificate. He has also not been paid his dues.

2. He has further submitted that he was charged with misconduct on 19th December, 1976, vide notice of enquiry, dated 23rd November, 1976. He appeared in the enquiry proceedings and was issued second show‑cause notice, vide letter, dated 23rd October, 1978 to which he replied within the prescribed period. He addressed a letter to the management on 25th November, 1978 for the acceptance of his resignation but did not receive any reply. He has also stated in the application that on 4th August, 1976 when he resigned from service the establishment was not covered under the Essential Services (Maintenance) Act and under Factory Order No.257, dated 22nd July, 1976 issued by the Managing Director it was offered that any employee who wanted to resign or leave the job could do so upto 5th August,1976. The applicant had resigned on 4th August,1976. He has prayed that orders may kindly be issued directing the management to accept his resignation and grant him clearance certificate, job leaving certificate and his dues be paid.

3. The respondent has raised preliminary objections that the application was not sustainable under law as the scope of section 6 of the Essential Services (Maintenance) Act was confined to regulate the wages and other conditions of service of persons and not beyond that because of the fact that acceptance of resignation does not come within the purview of conditions of service by any stretch of interpretation. He has further submitted that the application further merits summary rejection on account of suppression and misrepresentation of facts by the petitioner.

4. Under direction No.1 of the Directions issued by the Commission on 23rd December, 1978, vide SRO 97 (1)/79, dated 27th March,1979 any grievance relating to wages and other conditions of service including retrenchment, discharge, dismissal or termination from service can be brought to the notice of the Commission as Specified Authority under the Essential Services (Maintenance) Act, Section 5 of the said Act provides that a person who without reasonable excuse abandons such employment or absents himself from work shall be guilty of an offence under this Act. Explanation 2 below section 5 clarifies this further to say that a person who abandons his employment within the meaning of clause (b) notwithstanding that it is an express or implied term of his contract of employment that he may terminate his employment on giving notice to his employer of his intention to do so, so terminates employment without previous consent of his employer. Although word 'resignation' has not been used in this explanation but the termination of an employee's employment amounts to submission of resignation from the employment, and as such the Commission is competent to deal with this application. The preliminary objection raised by the respondent is therefore overruled.

5. The respondent has not denied the submission oaf resignation by the applicant on 4th August,1976 but it has been submitted that the respondent were not bound to accept the resignation at the cost of suppressing the national requirements and the exigency and that the applicant 'was informed accordingly. According to the respondents the petitioner was informed about the charge of misconduct on 19th December, 1976 vide notice of enquiry, dated 23rd pecember,1976 and that the petitioner had proceeded on one month's leave without pay, with effect from 20th September,1976 to 10th October, 1976 and submitted another application on 15th October,1976 for another month's leave, with effect from 20th October,1976 to 19th November, 1976 which was refused and the petitioner informed telegraphically on 26th October, 1976 with directions to resume duty immediately. The petitioner was issued a show‑cause notice on 4th November,1976 and in reply to the said show‑cause notice the petitioner submitted his explanation intimating the management that 30 days notice period given by him expired and as such the acceptance of resignation had become automatic and he was not bound to attend the respondent's factory. The respondent further submitted that the petitioner along with his witness appeared before the enquiry officer on 9th December,1976 and got his statement recorded on oath and while complaining about the non‑acceptance of his resignation sought on protracted illness of his wife came out of his shell and said in his closing evidence that he was not given promotion which he deserved though co‑workers who were junior to him had been promoted. According to the respondents the petitioner had admitted that his attendance record was strewn with frequent absence from the duty during the tenure of his service. According 'to the respondent the provisions of Pakistan Essential Services (Maintenance) Act, are imposed on various employments in the country in terms of necessity and requirements and national security and that the law was applied to secure official functioning of the various industries throughout the country and to plug the brain drain to abroad at the cost of adversely affecting the national interest and security of Pakistan. It was the right of the respondent to decide the matter relating to acceptance of his resignation taking into account the requirements, proper replacement of the employee seeking release and national interest.

6. The learned counsel of both the parties argued this matter before me on 20th of Apri1,1980 at Karachi. The learned counsel for the petitioner submitted that the management had issued a letter on 22nd July,1976 calling upon the employees who wished to resign to submit their resignation by 5th of August,1976 and that thereafter no resignation will be considered till 31st of December,1976. It was also stated in that letter that the resigner may be required to train his substitute to achieve the same level of proficiency as that of his own and that unless the substitute was properly trained the resigner will not be relieved. The petitioner submitted his resignation on 4th August,1976 on the ground that due to his family circumstances he could not continue his service any more. He was informed on 19th August,1976 that his resignation could not be accepted due to exigency of work. The learned counsel submitted that the petitioner had trained his substitute and Mr. Anis Jafri, Deputy Managar Production and Planning had recommended that he should be relieved of his duties. He was further served a show‑cause notice on 4th November,1976 on account of unauthorised absence and an enquiry was held but he has not been dismissed from service. The learned counsel for the respondent quoted a number of cases to show that the submission of resignation was not any right guaranteed under any law, settlement or award and that resignation also was not covered under the terms and conditions of service of any employee. He further submitted that the circular issued by the management calling upon employees to submit their resignation did not confer any right on the employees as the management had mentioned in the circular that the resignation should be submitted for consideration of the management. He further submitted tact due to the exigency service the management was not in a position to dispense with the services of the petitioner and they were still holding him on with a hope that he might mend himself. Since the petitioner was still in employment of the factory no cause of action has arisen and the application should be dismissed.

7. The Managing Director of the Pakistan Machine Tool Factory, vide Factory order, dated 22nd July, 19'76 had called upon the PMTF Workers who wanted to leave the job to submit their resignations by 5th of August, 1976 for consideration. Thereafter no resignation was to be considered till 31st December, 1976. The resigner could be required to train his substitute to achieve the same level of proficiency as that of his own and unless his substitute was properly trained the designer would not be relieved.

8. The petitioner with reference to this order submitted his resignation on 4th of August 1976 as his family circumstances did not permit him to continue his service in the Pakistan Machine Tool Factory. He gave one month's notice to the management This resignation was not, however, accepted due to exigency of work. It is rather surprising to note that the Managing Director issues an order on 22nd July,1976 and is less than a month's time comes up with the plea that there is exigency of work. If the exigency was to crop up within such a short period there was no necessity of issuing the order, dated 22nd July, 1976. The petitioner did apply in time and according to his own statement he had trained his substitute as well. The reason for submitting the resignation were also plausible.

The learned counsel for the respondent has submitted that the Essential Services (Maintenance) Act was not applicable to the factory at the time of his resignation and that it was made applicable to secure efficient functioning of the industry and to plug the brain drain to abroad at adversely affecting the national interest and security of Pakistan. It is not clear as to form what date the law was made applicable to this organisation but the factory order, dated 22nd July,1976 amply proves that the management had no such notion about their establishment at the time of issuance of that order. The management was, therefore, not justified in not accepting the resignation tendered by the petitioner as they had themselves called for resignation from their employees without any exception whatsoever. The whole concept of the applicability of the Essential Services (Maintenance) Act to this organisation was defeated when the respondent gave an option to the workers to submit resignation by a given date, which is unparallel in the history of industrial relations of this country. I, therefore, direct that the resignation of the petitioner should be accepted and his dues be paid and the necessary service certificate issued in his favour.

A. A.

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