NABI RAHIM Versus SHAHID SILK FACTORY

DECISION

This is an appeal against the order dated 7-1-1991 passed by the learned Presiding Officer, Sindh Labour Court No. III at Karachi whereby the grievance petition of the appellant was dismissed.

2. I have heard Mr. Ch. M. Maarif for the appellant and Mr. Abdul Qadir Jami for the respondent and have also gone through the record and proceedings of the case.

3. The brief facts of the case are, that the appellant claims to have served the respondent for about 4 years, when his services were orally terminated on 20-6-1990. After serving grievance notice upon the respondent the appellant filed grievance petition before the learned Labour Court which was resisted by the respondent on the ground that the appellant was never his employee and further that the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 hereinafter called the Ordinance was not applicable to the respondent's establishment.

4. There is oral evidence of the appellant against the oral evidence of Mr. Muhammad Ayub owner of the respondent establishment. There is no documentary evidence to show if the appellant was employed by the respondent or as to how many workers were working in the establishment of the respondent, therefore, we have to rely more on circumstantial evidence and on the legal presumptions to decide as to which of the versions advanced by the parties is more probable and believable.

5. The appellant claims that he was working in the respondent's establishment since about 4 years. In the cross-examination he admits, that he had no proof to show that he was in service as none of the workers had been provided with the employment card. Mr. Muhammad Ayub the respondent has admitted in his cross-examination, that they do not issue letters of appointment to the workers and that they do not maintain the attendance card. The appellant admittedly sent grievance notice to the respondent which has been produced alongwith the grievance application in which he asserted that he was working as weaver with the respondent for the last about four years. Mr. Muhammad Ayub has admitted that the grievance notice was received in his absence, but it was not replied to, because he was out of Karachi at that time and there was no other literate or responsible person in his employment, therefore, it could not be properly replied. He is not clear as to when he had gone out of Karachi and for how long. He does not state that after his return, he replied to the grievance notice. It may be pointed that the grievance notice is dated 28-6-1990 while the grievance petition was filed on 23-7-1990. Thus the assertion of the appellant in the grievance notice, that he was employee of the respondent remained un-rebutted. Appellant's failure to produce the appointment order is explained by the admission of the respondent in the cross-examination that they do not issue any appointment order. It is suggested in the cross-examination of the appellant that he had filed the grievance application to extort money and that he had demanded Rs.2,000 from the respondent for withdrawal of the case. The appellant denies these suggestions and they also do not appear plausible or believable. There is no evidence to prove these allegations. Even the respondent, in his affidavit in evidence has not alleged that the appellant wanted to extort money or that he demanded Rs:2,000 from the respondent. In view of the above evidence and circumstances I am inclined to believe the appellant, that he was employee of the respondent.

6. The respondent claims, that the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is not applicable to his establishment, but he has not produced any evidence to show as to what was the number of workers working in the establishment of the respondent. He states, that his establishment is registered under the West Pakistan Shops and Establishments Ordinance, 1969 and the photocopy of such registration certificate has been produced, but that alone would not be sufficient to hold that West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable to the establishment of the respondent. He has not produced the employment register to show the number of the employees working with the respondent. In the cross-examination the appellant has stated that there were 21 workers working with the respondent. He has given the names of 19 workers besides himself which would show that at least 20 workers were working with the respondent. The respondent has not denied that the workers named by the respondent were working in his establishment. The respondent has denied the suggestion of the appellant that there are 32 looms in his factory, but he has not produced any copy of schedule issued under the Shops and Establishments Ordinance showing the number of the looms in his factory. In the case of M/s. Urdu Academy v. Sindh Labour Appellate Tribunal, Karachi and others 1989 PLC 187 the learned Division Bench of Sindh High Court at Karachi has held "that since the petitioners claimed exemption from operation of the Standing Orders Ordinance, on the ground that total number of workers employed by them was always less than 20 the burden of proving such fact which would entitle them to claim such exemption was entirely on the petitioners. As the petitioners failed to prove the total number of workers employed by them, the learned Tribunal rightly held, that provisions of Standing Orders Ordinance were applicable to the petitioner".

7. In the instant case also the respondents have failed to prove that the total number of workmen was less than 20 and as such they are not entitled to claim exemption from the application of the Ordinance as claimed by the respondent.

8. In view of the above factual and legal position I am of the opinion that the provisions of Standing Orders Ordinance, 1968 would be applicable to the establishment of the respondent. It is not the case of the respondent that services of the appellant were terminated by an order in writing showing explicit reason for termination as required under Standing Order 12(3) of the Ordinance. As such the action of the respondent terminating the services of the appellant is not tenable. I therefore, allow this appeal, set aside the impugned order of the learned Labour Court and order reinstatement of the appefant.1 As there is no reliable evidence to prove if in the intervening period, the appellant was gainfully employed or not, I award him 50% of back benefits. The order to be implemented within one month.

H.B.T./1938/Lb.S ?????????????????????????????????????????????????????????????????????????????? Appeal allowed.