1982 PLP 357 (PLC)

SAJJAD ALI SHAH, J.‑By this constitutional petition orders dated 1st December, 1980 of the Sind Labour Appellate Tribunal, Karachi and dated 15th October, 1980 of IIIrd Sind Labour Court, Karachi, respectively have been assailed to have been passed without lawful authority on the ground that the two Courts below had no jurisdiction for the reasons firstly that respondents Rustam Rashid Ahmed and Muhammad Ali were employed in the factory as temporary workers on probation as such they were not entitled to any notice of termination of their services and secondly that at the relevant time the factory had in their employment less than 20 workers is such the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were not attracted. Briefly stated the relevant facts are that the three respondents named above were employed by the petitioner Factory and their services were terminated without notice. They served Grievance Notices in response whereof they received a reply that their services were terminated as they were probationers and their work was found unsatisfactory hence they were removed from service without notice. Respondents/Employees filed applications under section 25‑A of the Industrial Relations Ordinance, 1969, before Sind Labour Court, Karachi. Objections were filed by the petitioner and the stand was taken that respondents were temporary employees on probation and were not entitled to notice or a formal letter of termination of services as contemplated under Order 12 (3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Second objection was taken that the petitioner company had only 16 workers in their establishment before November, 1979, however in the month of November and December the number of workers reached about 100 due to augmentation of work. Respondents/ Employees filed additional affidavits in evidence claiming that they were not probationers but were permanently employed hence their removal without notice was illegal. Respondents/employees were cross‑examined and the petitioner company filed affidavit of one Gulzar Ahmed who had also signed reply statement filed before the Labour Court. The Labour Court after giving proper hearing to the parties came to the conclusion that the petitioner company had failed to furnish any proof that the respondents/employees were probationers and in the result allowed appli cations and set aside termination orders of the employees with direction that they should be re‑instated with full back benefits. Appeal filed by the petitioners company stands dismissed in limine by the Sind Labour Appellate Tribunal for reasons elaborately mentioned therein. Mr. Abdul Hameed Khan counsel for the petitioner before us contended that the respondents/employees were probationers as such they were not entitled to notice of their termination of service and total number of employees with the petitioner company was below 20 as such provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were not applicable. We find no substance in the contentions raised by the learned counsel for the reason that before the Labour Court where the matter was contested, the petitioner company has not produced any evidence in support of the contentions raised now. The case of the petitioner company is that respondents were temporary employees and probationers hence it was incumbent upon the petitioner to have produced evidence before the Labour Court to show that in fact the respondents were temporary employees. The company is expected to maintain full record of the affairs of the company and of all the employees. They could have produced letters of appointment to show that they were employed on temporary basis on probation. The company also could have produced evidence to show the number of workers in their employment at the relevant time to substantiate the contention that the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 were not applicable. The company before the Labour Court has examined Gulzar Ahmed who stated that he was concerned with the management of affairs of the company. He produced three applications purporting to have been thumb marked by respondents/ employees to show that they were employed on probation for, a short period. Respondents categorically denied and disowned these thumb impressions on those applications to have been made by them. No further request was made on behalf of the company to send those thumb- impressions to the Handwriting Expert. Furthermore in cross‑exami nation this witness Gulzar Ahmed admitted that his mother was partner in the petitioner company and be had no power of attorney from either of the two partners. His mother had orally authorized him to look after the affairs of the firm. She had not given him any power of attorney in writing. He further stated that he did not know if the partnership between his mother and his brother was registered or not. He further ad mitted that he had nothing in writing to show that he had been authorized to appear on behalf of the company or sign any document on their behalf. He further disclosed that his brother Shamim Ahmed was registered as factory manager and had died in the year 1979. From that time the name of Shamim Ahmed still remained on the record as factory manager. This witness further admitted that respondent firm does not issue appointment letters to workers. He admitted that appointment letters were not issued to Rustam, Rashid Ahmed and Muhammad Ali and termination letters were also not issued. He admitted that at the time of his giving evidence about 60 workers were employed by the respondent Company. Apart from the oral statement of this witness as stated above no attempt was made to produce any documentary evidence. Obviously the burden was upon the petitioner company to produce evidence before the Labour Court to prove that respondents were temporary employees on probation and were not entitled to notice at the time of their termination of service and the number of workers employed in the firm on the question, whether West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was applicable or not. Petitioner company ha failed to produce any evidence and in these circumstances the order passed by the Sind Labour Court and Sind Labour Appellate Tribunal are perfectly legal and justifiable In these circumstances no interference is called for and the petition is dismissed in limine.