1993 PLP 41 (PLC)

MAMOON KAZI, J.‑‑‑These petitions call in question the order passed by the learned Labour Appellate Tribunal dated 7‑11‑1985, allowing the appeal of respondent No. 1 and setting aside the order of the Labour Court dated 9‑12‑1984 dismissing the respondent's grievance petition filed before it.

2. The facts of the case are that the services of respondent No. 1 in each of these petitions were terminated by the petitioner verbally without assigning any reasons. According to the petitioner their cinema wherein the respondent was employed needed renovations and repairs, therefore, the services of the said employee were not required by it. Being aggrieved by such action, the respondent filed a grievance petition before the learned First Sindh Labour Court, Karachi, which was dismissed by the learned Labour Court mainly on the ground that during the year preceding the action taken against the employee, the petitioner had employed less than 20 persons and consequently the provisions of Standing Orders Ordinance under which the grievance petition had been filed were not applicable to the parties.

3. The respondent being aggrieved by such decision appealed before the learned Labour Appellate Tribunal which allowed the appeal and set aside the order of the learned Tribunal, as pointed out earlier.

4. We have heard Mr. Mushtaq Memon, learned counsel for the petitioner and Mr. Suleman Habibullah, learned counsel for the respondent No.

1. None has appeared on behalf of the respondents Nos. 2 and 3.

5. So far as the order passed by the learned Labour Court is concerned, it indicates that the respondent had failed to produce any substantial evidence before it to indicate that the number of persons employed by the petitioner during the year preceding the said action against the respondent was at any time

20. The respondents had only relied upon a photo copy of a statement given by one Rais Ahmed before the learned Labour Court in another case filed under section 25‑A of the I.R.O. wherein it had been stated by him that the number of persons employed by the petitioner during the relevant period was more than

20. As against this evidence, the petitioner produced the original employment and remuneration register for the relevant period besides receipts showing payments made to the Social Security and Employees Old Age Benefit Institutions. The evidence produced by the petitioner showed the number of persons employed during the relevant period as

11. Consequently, the learned Labour Court after holding that the onus to prove that the provisions of Standing Orders Ordinance were applicable to the workmen was on the latter, came to a conclusion that since the number of persons employed by the petitioner was less than 20, the provisions of Standing Orders Ordinance were not applicable to the parties. The learned Labour Court also ruled the photo copy of affidavit of the said Rais Ahmed out of consideration as the same could not be relied upon as evidence in the instant case. A perusal of the order of the learned Labour Appellate Tribunal shows that the order passed by the Labour Court has been set aside only on the ground that the said Registrar produced by the petitioner before the learned Labour Court had been manipulated and that the evidence given by the petitioner were

26. We cannot persuade ourselves to agree with the findings of the learned Labour Appellate Tribunal because evidently no evidence was produced by the respondent before the learned Labour Court in regard to the number of persons employed by the petitioner during the relevant period. The respondent had only relied upon a photostat copy of the affidavit filed by an ex‑employee of the petitioner in another case. Such person was neither examined by the respondents in the instant case nor he was subjected to cross‑examination by the petitioner's counsel. Consequently, the evidence given by the said Rais Ahmed in another proceeding could hardly be relied upon by the learned Labour Appellate Tribunal in the instant case. The observations of the learned Labour Appellate Tribunal that the register produced by the petitioner before the learned Labour Court was manipulated also do not appear to be supported by any evidence on the record as no reasons have been stated in the impugned order by the learned Tribunal for arriving at such conclusions. It is, therefore, clear that the findings of the learned Appellate Tribunal cannot be sustained on the basis of evidence produced by the parties before the Labour Court. The order passed by the learned Labour Appellate Tribunal is, therefore, evidently erroneous.

6. In the result, we accept these petitions and quash the said order dated 7‑11‑1985. The parties are left to bear their own costs. A.A./C‑258/K Petitions accepted.