Messrs FAIZ ENTERPRISES Versus AKHTAR BAIG

DECISION

This is an appeal filed by the appellant establishment against an impugned order, dated 3-5-1987 passed by the Sind Labour Court No. III, at Karachi, who had allowed the grievance petition of the respondent, namely, Akhtar Baig, under section 25-A, I.R.O. 1909, directing his reinstatement In service with full back benefits.

2.Brief facts of the case were that the respondent clamed to have been employed in the appellant establishment as a Clerk on 25-3-1q80, and an establishment namely, Messrs Bilal Enterprises was a sister concern of the appellant establishment, therefore, the services of the workman engaged in the appellant establishment were transferable to the sister-concern viz Messrs Bilal Enterprises. It was claimed by the respondent that ho was, at the relevant the working with Messrs Bilal Enterprises on transfer, and when on 10-12-1984, so he claimed to have approached the appellant establishment, but, he was not taken back on duty, hence being aggrieved he served his grievance notice followed by the present grievance petition under section 25-A, 1.R.0. 1969.

3.The appellant establishment had resisted the petition of the respondent mainly .on the ground that there was no relationship of master and servant between them as the respondent had himself left the service from their establishment on 23-2-1983 without any intimation and that they had no connection of any kind with Messrs Bilal Enterprises, hence, the respondent was not entitled to maintain his grievance petition which was liable to be dismissed.

4.The respondent had examined himself only in support of his case, while the appellant establishment had produced one Maqsood Elahi on its behalf. The Bilal Enterprises did not produce any evidence. Thereafter, the learned Labour Court had passed the impugned order, hence the present appeal.

5.I have heard Mr. Sher Malik, the learned representative for the appellant establishment and Mr. S.P. Lodhi, the learned representative on behalf of the respondent and have also carefully perused the record and proceedings of the case as well as the written argument submitted. The appellant establishment has pointed out that the establishment never employed fifty or more workmen at any time, therefore, the provisions of Standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1908, were not applicable to them and this burden to prove the applicability was upon the respondent which he had miserably failed to discharge. From the perusal of the record, I find that if it be presumed that the respondent was a workman of the appellant establishment, then there is nothing on record on behalf of the respondent to prove that the provisions of Standing Orders Ordinance, 1968, were applicable on the employees of the appellant establishment. It is an admitted position of record that the respondent did not establish his claim that after 23-2-1983, he had ever worked with the appellant establishment or he had attempted to get called the records from the appellant establishment before the learned Labour Court. It is also an admitted position on record that after denial of the appellant establishment that neither it had any sister concern, namely, Messrs Bilal Enterprises nor it had any connection with it, it was the duty of the respondent workman to prove his contentions or claim because he had claimed so, but, in this case also, he had failed to discharge his duties. While, on the other hand, there is a contradictory evidence on record on behalf of the respondent who was actually running Messrs Bilal Enterprises as its owner or proprietor, which had clearly created a doubt against the respondent and the benefit of doubt about the correct employment of the respondent must go in favour of the appellant establishment that the respondent was not its employee at the relevant time, or that Messrs Bilal Enterprises had no concern with the appellant establishment. It is also admitted that the employment of the respondent with it was with effect from 27-2-1983 to 14-5-1985 and again from 21-6-1984 till 10-12-1984 but, the learned Labour Court was not correct in ignoring this aspect of the case in the impugned order. Thus, I would hold that in view of this admitted position, the objection of the appellant establishment that the learned Labour Court had no jurisdiction over the present case must be upheld and so the grievance petition of the respondent was not legally maintainable for want of jurisdiction. The bare word of the respondent that he was employed with the appellant establishment, or the provisions of Standing Orders Ordinance were applicable to the appellant establishment, or that the Messrs Bilal Enterprises was a sister concern of the appellant establishment, or that the respondent was illegally removed from the employment of the appellant establishment and or that the learned labour Court had a jurisdiction in his case cannot be relied upon, particularly in the circumstances that there is no oral or documentary evidence on record in support of the claims of the respondent. All the case laws relied upon by Mr. Sher Malik, the learned representative for the appellant establishment in support of his contentions, could not be over-looked as they are very well applicable to the facts, circumstances and legal aspects of the present case they are 1977 P L D 663 at 669; 1977 P L C at page 223, 1982 P L C 608; 1978 P L C 22; 1981 P L C 511 and 1980 P L C 1012. In view of these facts, circumstances and legal aspects of the present appeal, I would hold that the learned Labour Court was not correct in passing the impugned order which is liable to be set aside. Mr. S.P. Lodhi the learned representative for the respondent has nothing new to add in his arguments which he had submitted before the learned labour Court. However, I see no force in these submissions of Mrs. S.P. Lodhi.

6.For the reasons discussed by me above, 1 would set aside the impugned order and would allow the present appeal. Grievance petition of the respondent under section 25-A, I.R.O. 1969 is accordingly dismissed. The amount of the back benefits as deposited by the appellant establishment before this Tribunal be returned to them forth with.

A.E./1276/Lb. S.

Appeal allowed.