2001 PLP 635 (PLC)

Zafar Farooqui, Representative for Respondent. Date of hearing: 10th May, 2001. This appeal arose from the Order, dated 30th May, 2000 of Sindh Labour Court No. 1, Karachi whereby the grievance petition filed by respondent Habibur Rehman was allowed and he was ordered to be reinstated in service within 30 days of the order with all back‑benefits. The respondent's case briefly is that he was employed with M/s. Al‑Hadi Textile (Pvt) Ltd., hereinafter referred to as the Appellant‑Company as helper and had been discharging his duties since January 1997 honestly and sincerely. However, he was not given any written Appointment Order as required by Standing Orders Ordinance, 1960 nor was he allowed legal allowances admissible under Labour Laws including Rs.300 CLA, overtime wages, leave, bonus and other monetary benefits. He requested the Management of the Appellant‑Company to give his all what was legally due to him. Meanwhile the other workers also came forward to make their demands whereupon the Appellant‑Management was displeased and as a result the respondent was removed from service on 2‑6‑1999 again without any written order as required by aforesaid Ordinance. On his removal from service he sent a grievance notice dated 15‑6‑1999 to the Appellant‑Management on 19‑6‑1999 by Registered Post but it was never replied. He was, therefore, constrained to file grievance petition on 30‑8‑1999,

2. In Reply Statement the Appellant‑Company denied that the respondent was over employed in their Establishment as helper. There was no record showing the respondent in the Company's Employment List and as such there was no relationship of employee and employer between his and the Appellant‑Company. In absence of such relationship, the Appellant Company has averred, he was not entitled to any rights or benefits claimed by him in his petition. As a matter of fact he was hired to work as Assistant Cook/domestic servant in the house of Mr. Mazhar Javed Khan, the Chief Executive of the Company but since he did not have the requisite training of Cook he had to be discharged from domestic service of the said Chief Executive. ‑As Assistant Cook he had nothing to do with the Company of which Mr. Mazhar Javed Khan was Chief Executive. Consequently the Labour Court had no jurisdiction to entertain, much less decide the grievance petition filed by the respondent.

3. It appears from record that respondent Habibur Rehman filed his Affidavit‑in‑Evidence in support of his case while three witnesses namely; Rab Nawaz, Accountant, Azam Khan. Security Guard and Niamat Khan Bed Sheet Sticher were examined by the Appellant‑Management to prove their case. I have heard the learned counsel of both the parties and have also perused the relevant documents available in the case file.

4. On perusal of the Order of the learned Labour Court it is found that two Issues were framed for decision in the case; namely, first Whether there was relationship of employee and employer between the parties and second Whether applicant was employed in January 1997 as helper and his services were terminated unlawfully on 2‑6‑1999? Taking up the first issue which in fact is a crucial Issue I am sorry to say that the learned Lower Court has wrongly thrown the burden' of proving this Issue on the Appellant Management. In fact it was the respondent Habibur Rehman who came forward with the claim that he was employed in the Appellant‑Company as helper. Therefore, the burden of proving his such assertion lay on him and not on the Appellant Management. But he was fade to discharge this burden. Excepting his solitary oral word he has not able to produce any other evidence oral or documentary in support of his claim. Admittedly there was neither Written Order of Appointment nor Written Order of Termination of his services to show that the respondent had over served in the Appellant Company until his services were terminated. Apart from above no other document such as Identity Card, gate pass etc. has been produced by the respondent to prove his claim. However, the learned Lower Court while discussing the evidence of Rab Nawaz, the witness of the Appellant Company, found in his evidence that respondent Habibur Rehman was known to him as he used to work as Cook in the house of Mr. Mazhar, the Director of the Appellant‑Company and used to bring food to the Mills for Mr. Mazhar. The learned Judge also came across the Attendance Register of the Mills produced by the said witnoss Rab Nawaz but did not find the name of the respondent mentioned in the said Register. So, has been said by the witness who produced Register. It is true that the said witness has stated in his evidence that the respondent was not issued Appointment Letter or service card as such document was not issued to any other employee of the Appellant Establishment. It is also true that in course of cross‑examination he stated that Appellant Management did not issue any Appointment Letter or Service Card to any of his employees. But these admissions made by the witness would not be held to have automatically proved that the respondent was employee of the Appellant‑Company. He had to prove his employment in the Appellant‑Comp3tty by independent satisfactory evidence. Unfortunately no iota of evidence has been produced by the respondent in support of his claim. If he did not possess any document to prove his case he could have examined any of co‑workers or employee of the Management in support of his case. The employees who have been examined by the Appellant Management have not said anything in their Statements showing that respondent was employed in the service of the Appellant‑Company and not as a domestic servant of the Company's Director Mr. Mazhar Javed Khan. On the contrary the Attendance Register which was an important document for proving the employment in the Appellants Company was absolutely silent so far the respondent was concerned as his name was not mentioned in the said Register. The learned Labour Judge was obviously in error to think that the relationship of employer and employee was to lie proved by the Appellant‑Company 'rather than by the respondent Habibur Rehman. That is precisely the reason why the learned Judge came to the wrong conclusion on issue No. 1 that Appellant Company had failed to produce any reliable evidence. In proof of their case. The learned Judge instead emphasized the inconsistency found in the evidence of Appellant Management's witnesses Rab Nawaz and Azam Khan with regard to number of workers working in the Appellant Mills. This inconsistency had no material effect on the crucial issue which the learned Labour Court had to decide, namely the Relationship of employer and employee between the parties and the respondent's employment as helper in the Appellant Company.

5. In support of the Company's case their learned counsel Mr. Muhammad Tasnim relied upon the decision of my learned Predecessor Mushtak Ali Kaz, J. reported as 1997 PLC 13 wherein it was held: "He admits that he has no appointment order, card or ticket to show that he was employee of the Silk Mills. The burden lies on the appellants workmen to prove their relationship of employment with the respondent‑Mills. In the absence of any such evidence it cannot be said that these workmen were employees of Silk Mills. The petitions of these workmen have, therefore, rightly been dismissed."

6. In another case reported as 2001 PLC 223, in more or less similar circumstances the decision was given in favour of the Respondents Industries, as the appellant worker Sher Bahadur failed to prove his relationship with the respondent as that of employer and employee. I have no reason to differ from the view taken in the aforesaid cases. In short the respondent Habibur Rehman has failed to establish his relationship with the Appellant Company as that of employee and employer. The only evidence that he has produced in support of his case is his oral word which cannot be i, accepted as proof of his case. In view of above discussion there is no merit in the case of respondent Habibur Rehman and as such the findings of the learned Labour Court cannot be endorsed. Consequently the judgment of the learned Labour Court is set aside and the appeal of the Appellant Company is allowed. H.B.T./59/K (Lab. Trib.) Appeal allowed.