ASIF ALI ZARDARI Versus THE STATE
DECISION
Iri the Constitutional Petition No.D‑851 of 2000, the Sindh High Court by its Order dated 25‑11‑2000 set aside the judgment dated 7‑12‑1999 passed by my learned Predecessor Justice (R) Tanzilur Rehman and the matter was remanded back to this Tribunal for fresh decision after providing opportunity of arguments to the parties' counsel. In compliance with the said Order Mr. Rafiullah was heard for appellants and Mr. Mehboob Rizvi for respondents' Factory in all the thirteen appeals which had arises from the common Order dated 13th July, 1999 of Sindh‑Labour Court No. 1 Karachi.
2. The factual background of the aforesaid appeals may be summarized as follows. The appellants Nazir Ahmed, Sarfaraz, Muhammad Rafiq, Muhammad Aslam, Khalid Farooq, Muhammad Rashid and Abdul Qayyum were appointed in the Respondents' Factory as Weavers 'on 14‑6‑1995 though appellant Mubarak Ali was appointed in the same capacity on 15‑1‑1994 and appellants Muhammad Masood Ahmad. M.A. Shabbir Khanial and Muhammad Nawaz were employed in the said Factory, as Providers on 15‑1‑1994, 18‑1‑1994 and 14‑6‑1995 respectively whereas appellant Ghulam Hussain entered service of Respondent's Factory as a chowkidar/Coolie' on 14‑6‑1994 and appellant Abdul Latif as Munshi on 19‑1‑1994. The appellants' case is that the Respondents‑Factory situated on Plot No.S.A. 37‑38. Sector No.4. Qasba Town, Manghopier Road, Karachi and the said factory consists of number of sections/Departments apart from Security Section and Main office where more than 38 workers were employed and hence all Labour laws are applicable to the Respondents Factory. According to the appellants' version of the case though the Respondents‑Factory was working round the clock in 2 shifts, yet in violation of Labour Laws the said Factory denied holidays, Socially Security and other benefits due to the workers. Appointment Letters, Security Cards, Ticket Numbers were also not issued to the workers. Because of such omissions on the part of Respondents Factory the appellants alongwith other workers formed trade union to get their rights and benefits. On this the Respondent; Management was so annoyed that on 17‑7‑1999 the appellants were physically thrown out of their jobs with the help of hired Goondas and their services were terminated without any written order and without show cause notice and enquiry. Thereupon, the appellants sent grievance notice dated 13‑10‑1997, each appellant sending a separate notice by Registered Post. As their grievance remained un‑redressed they filed grievance petition, each appellant filing separate petition which were, however, dismissed by common orders as mentioned above.
3. In their Reply Statement the Respondents Management denied the very relationship of employer/employee between them and the appellants. It was also denied that 20 or more workers had remained on the Roll of Factory 8 Management at any time during the proceeding 12 months. Accordingly Standing Orders Ordinance, 1968 and I.R.O. 1969 were not applicable. As regards location of the Respondents' Factory, according to the Management ; it is situated on Plot No.A/38 and not on Plot No.A/37 which was in occupation of Rashid Silk Factory. The Respondents Management have denied that any grievance notice was served on them. They have also denied that the appellants were ever called by them or that they threatened the General Secretary of the Union. Admitting the receipt of letter dated 1‑9‑1997 from Assistant Director Labour they have stated that it was duly replied by letter dated 5‑9‑1997. According to them the said Assistant Director Mushtaq Ahmed held enquiry as a result of which the application of the Union for certification as C.B.A. was rejected vide letter dated 9‑11‑1997. Consequently the Registrar of Trade Union filed Application in Labour Court No.V for cancellation of Registration of the Union.
4. All the appellants filed their affidavit‑in‑evidence and were cross‑examined thereon. The Respondents Management's employee Fazal Moula also filed his affidavit‑in‑evidence in each case and was cross examined. On the other hand Tariq Nisar filed his affidavit‑in‑evidence on behalf of the Respondents Management and was cross‑examined. His cross‑examination in Application No. 175 of 1997 was adopted with consent of both the parties to be read as same in all other applications. The Respondents Management also examined three officials namely Abdul Manan, Labour Inspector. Muhammad Raunaq Khan and Mushtaq Ahmed Assistant Director Labour and were cross examined. As stated above I heard the learned counsel of both the parties and went through the massive record particularly relevant documents available in the file.
5. The crucial point to be determined in this case is existence of relationship of employers/employees between the parties. On one hand all the appellants have stated obviously on oath in their Affidavit‑in‑Evidence that they were employed and have worked in various capacities in the Respondents' Factory most of them as Weavers, some as Provinders, one as ' Chowkidar and one as Munshi. Thus, all the appellants claimed to be employees of the Respondents' Factory. However, this relationship has been vehemently denied in the reply statement submitted by the Respondents' Factory. In view of the respondents' denial of relationship between the parties, the burden was on the appellants to prove it. They could prove the relationship either by oral or documentary evidence or by both means. It would appear that appellants have largely relied upon their oral evidence contained in their affidavit‑in‑evidence. That evidence can hardly be believed because in view of the complete denial of the relationship by the Respodnets' Factory, appellants' oral evidence at the most be treated as word against word. But they have also relied upon photo copies of Identity Cards produced by appellants Nazeer Ahmed, Muhammad Aslam, Muhammad Nawaz and Muhammad Rafiq alongwith their affidavit‑in‑evidence. These Cards are shown to have been issued by the respondents' Management on request of the concerned appellants in view of peculiar law and order situation prevailing in the City. There is, however, no satisfactory explanation on record to show why Cards were not produced. Moreover, as rightly remarked by the learned Lower Court the Stamp of Respondents' Factory on the Cards was not visible. It was also unbelievable that employers who make sure not to issue even basic documents likc appointment order. Ticket Number or Old Age Benefit Card would issue the aforesaid Cards for a temporary period. Moreover, the omission to make a mention of these cards at the earliest opportunity i.e. at the time of filing grievance petitions only shows that the said cards were the result of some subsequent manipulation. Further, evidence relied upon by the appellants was some envelopes carrying the address of Respondents' Factory produced by appellants Abdul Qayum and Ghulam Hussain in an attempt to prove that the address of the Respondents' Factory on the said envelopes proved that the appellants were in the employment of Respondents' Factory. The learned Labour Court has given good reasons for rejecting the evidence of envelopes as unsatisfactory. Agreeing with his conclusions in this regard I have noticed that firstly the Stamps on the envelopes were not visible and secondly concerned postman was not examined in this connection nor the persons who had sent those envelopes were produced to give evidence in support of the appellants. These envelopes also do not find mention in the appellants' grievance petitions. As such they too, in my opinion were result of subsequent manipulation.
6. The evidence of Fazal Moula co‑worker of the appellants was also of no help to them. There are more than one reason for disbelieving his evidence. Firstly like appellants he too was entangled in litigation with the same Respondents. Secondly in his case termination order was issued. If so, question prose what prevented the respondent Management from issuing termination orders in case of appellants. Moreover, inconsistency in his evidence also had the effect of rendering his evidence doubtful. According to his original pleading more than 30 workers were working in the Respondents' Factory but in cross‑examination he reduced the number of workers to 20 only, and again he was unable to name them excepting four of them namely Rafiq, Aslam, Abdul Qayum and Sarfaraz.
7. So far Respondents Factory was concerned they produced two Registers one of employment and another of remuneration alongwith their reply statement. The said registers are, silent so far the names of appellants were concerned. However, the appellants attacked the authenticity of both the registers declaring them to be forged and bogus. Despite such adverse version of the appellants their own witness Fazal Moula admitted his signature in the‑said Register.
8. As regards the documents filed by the appellants as Annexures A/5 to A/9 alongwith their affidavit‑in-evidence, the respondents; witness Tariq Nisar has specifically stated in para. 5 of his affidavit‑in‑evidence that the said documents were forged and fictitious but he was not cross‑examined with regard to this statement. As such his Statement remains unchallenged and unrebutted. Even otherwise these documents are of doubtful nature because they were not mentioned in grievance petitions. It appears from the evidence of respondents' witness Mushtaq Ahmed who was Assistant Director and who had made enquiry with regard to number of workers employed in the respondents' Factory that only 7 workers were working in the Respondents Factory. He was cross‑examined but nothing was brought out from him to show that he was a prejudiced witness. On top of all stated above the Respondents' Factory has produced a copy of Registration Certificate on Form‑C which was issued under Shops and Establishment Ordinance, 1969. It proves that the Respondents' Factory was registered under Shops and Establishment Ordinance showing thereby that said Factory never employed 10 or more workers because in that case its registration E would have been made under Factories Act, 1934.
9. In view of the above discussions the conclusions drawn by learned Labour Court are correct particularly because he has given convincing reasons in support of the said conclusions: Since the relationship between the parties was a crucial Issue and was not established. He rightly refrained from taking decision on other points including the point of limitation. Apart from this I would like to add a few more words. Though the number of workers employed in the Respondents' Factory was disputed and, therefore, it could not be safely held that Standing Orders Ordinance, 1968 and I.R.O., 1969 were applicable in the case yet if their applicability was presumed, then as provided by Standing Order 2‑A of the Standing Orders Ordinance, 1969 every workman at the time of his appointment shall be provided with an order in writing showing the terms and conditions of his service. It is an admitted position that none of the appellants was provided with appointment F order in writing nor any other document ordinarily issued in favour of the employee was given to them. As such I am of the view that their appointment was illegal, ab initio because in absence of aforesaid documents their appointment was not in accordance with provision of law referred to above. The question arose if illegal appointee was entitled to any legal rights even if he was allowed to continue in service with connivance of the employer. The reply would be in the negative because the express provisions of law has got to be complied with. Even if any employee is allowed to continue obviously with connivance of the employer even then it was necessary to issue his appointment order as required by laws If illegal appointment was terminated again without a written order i.e. not in accordance with law the employee concerned could not challenge it for the reason that the very appointment which was illegally terminated was itself illegal.
10. For aforesaid reasons the Judgment of the Labour Court is upheld and all the~13 appeals filed against the said Judgment are dismissed.
H.B.T./61/L Appeals dismissed,