RECHA PAKISTAN LIMITED, KARACHI Versus ABDUL GHAFFAR VIRANI

MAMOON KAZI, J.‑‑‑ The petitioner has called in question the order passed by the learned Sindh Labour Appellate Tribunal dated 10‑9‑1990, reversing the order earlier passed by the learned Labour Court dated 11‑3‑1990 dismissing the grievance petition of the petitioner.

2. The facts of the case are that the respondent No. 1 was employed as "Administrative Assistant" by the petitioner. He was charge‑sheeted for misconduct for his mis-behaviour with another member of the office staff. On 15‑9‑1987 the respondent was served with a show‑cause notice and after a domestic enquiry was held by the petitioner, the services of the respondent were terminated by order dated 25‑10‑1987. He was, however, granted one month's pay in lieu of notice.

3. The grievance notice sent by the respondent was res1sted on the ground that the respondent had been removed under the provisions of the West Pakistan Shops and Establishments Ordinance, 1969 and further that the charges against him had been duly proved at the enquiry. The respondent, however, filed his grievance petition before the learned Third Sindh Labour Court, Karachi which was dismissed as the Labour Court came to a conclusion that the workmen employed by the petitioners were less than 20 and the provisions of the Standing Orders Ordinance were, therefore, not applicable to them. The learned Labour Court also held that the services of the respondent had been terminated in accordance with law after he had been provided an opportunity of hearing to the petitioners.

4. It is pertinent to point out that only the respondent No. 1 adduced evidence before the learned Labour Court but no evidence was adduced before it on behalf of the petitioners. According to the evidence led by the respondent No. 1, although the assertion made by him in the grievance petition that the number of workmen employed by the petitioners was more than 20 was not further supported by his affidavit‑in‑evidence, nevertheless the respondent relied upon what had previously been stated by him in his grievance petition before the learned Labour Court. The respondent, however, filed a list of 57 employees which according to him, had been employed by the petitioner. Apart from this evidence, no other evidence was led on behalf of the respondent who admittedly failed to call for the relevant record from the petitioners' office or to lead authentic evidence in this regard. The learned Tribunal, however, held that the onus to establish that the number of workmen employed by the petitioners was less than 20 lay on the petitioners and it did not agree with the findings of the learned Labour Court that such onus was on the respondent ?employee.

5. After going through the record of the case produced by the petitioners alongwith the memorandum of petition and after hearing the learned counsel, we are of the view that the decision of the learned Appellate Tribunal is not sustainable in law. No doubt, the respondent stated in his grievance petition before the learned Labour Court that the number of workmen employed by the petitioners was more than 20 and in his affidavit‑in‑evidence filed subsequently, reliance was placed on whatever had been earlier stated in the application and as admittedly no evidence was adduced on behalf of the petitioners in rebuttal but the cross‑examination of the respondent further shows that he was himself not certain about the number of workmen employed by the petitioners. First of all as per admission of the respondent himself, the list of 57 workers relied upon by him was prepared by him after his services had been terminated by the petitioners. The record from which the list was allegedly prepared was not produced before the learned Labour Court by the respondent although according to him, the same could be produced before the learned Labour Court. Furthermore, the respondent appears to have admitted in his cross‑examination that the employees as per list supplied by him were employed by the petitioners throughout Pakistan. The respondent was not even sure whether even 14 persons out of the said list were covered by the definition of "workman" given in the Standing Orders Ordinance. It is thus clear that the evidence adduced by the respondent in this regard was not sufficient upon which any reliance could be placed by the Labour Court and in our opinion, the Labour Court had, therefore, rightly rejected such evidence as insufficient.

6. So far as the question in regard to the onus of proof is concerned, we are unable to agree with the findings of the learned Appellate Tribunal that the onus to establish that 20 or more workers had been employed by the petitioners during the year preceding the impugned action was on the petitioners. In our view, since the petitioners had categorically denied in the written statement filed on their behalf that the number of workers employed by them was less than 20, the burden clearly was on the workman who had filed the grievance petition before the learned Labour Court. Notwithstanding the fact that the record in this respect was not made available by the employer, such record could always be summoned by the learned Labour Court at the request of the respondent. The burden of proof under no circumstances could, therefore, shift to the employer and it was incumbent on the respondent to first establish that the learned Labour Court was vested with jurisdiction to try the case. Such onus, in our opinion, the said respondent had certainly failed to discharge by failing to produce any substantial evidence in this regard. Even if the statement made by the respondent in the grievance petition is regarded as evidence still the other evidence given by the respondent made it doubtful that the assertion of the petitioners that the number of workmen employed by them was less than 20 was not incorrect. The reasons, therefore, given by the learned Appellate Tribunal for reversing the findings of the learned Labour Court are not based on the accepted legal principles.

7. In the result, we accept this petition and quash the order passed by the learned Appellate Tribunal and uphold the order passed by the learned Labour Court.

H.B.T./R‑219/K ?????????????????????????????????????????????????????????????????????????????????? Petition accepted.