1999PLC493 (PLP)

This is a revision application under section 38 (3‑a) of the Industrial Relations Ordinance, 1969, against the order dated 14‑5‑1998, passed by the learned Labour Court No. VI at Hyderabad in Grievance Application No. 179 of 1995.

2. The respondent was appointed by the applicant on different dates for different periods. Mr. Devdas and Wahid Bux for applicant and respondent have filed a statement in writing, signed by them in respect thereof, which is reproduced as under:‑‑ Detail of appointment.

1. First appointment 7‑12‑1991 to 4‑2‑1992 60 days (Gap 2 days)

2. Second appointment 7‑2‑1992 to 6‑4‑1992 60 days. (Gap 2 months)

3. Third appointment 10‑6‑1992 to 8‑8‑1992 60 days continued to work till 29‑7‑1995.

4. Removed w.e.f. 29‑7‑1995 (Sd.) Representative of respondent (Sd.) 21‑4‑1999. 21‑4‑1999 According to S.R.T.C. record, he remained in S.R.T.C. UP to 8‑8‑1992. (Sd. ) 21‑4‑99. " In this case, the respondent was temporarily appointed as Washing Cleaner w.e.f. 7‑12‑1991 for 60 days by office order (Annexure A‑1). It was stated in. the said appointment order that his service will automatically stand terminated on the expiry of the above period. Thus his appointment came to an end on 4‑2‑1992. After a gap of two days, he was appointed afresh for another period of two months w.e.f. 7‑2‑1992 (Annexure A‑3), terminable automatically on the expiry of the above period. Thus, his appointment came to end on 6‑4‑1992. Again he was issued a fresh office order appointing him w.e.f. ,10‑6‑1992 (Annexure A‑4) for a period of two months ending 8‑8‑1992, after a gap of three days.

4. The representative of the respondent submits that the respondent continued to work up to 29‑7‑1995 when his service was terminated without issuing termination order in writing and showing any reason for the same.

5. The written statement was filed on behalf of the applicant Corporation wherein several allegations, made by the respondent, were denied. An affidavit‑in-evidence by the respondent was filed and was cross- examined by the Advocate of the applicant Corporation. Two affidavits‑in -evidence on behalf of the applicant Corporation were filed. But none appeared for cross‑examination, although a number of adjournments were granted to the applicant Corporation for production of their witnesses for cross‑examination.

6. The respondent has submitted no office order to prove continuity of his employment beyond 8‑8‑1992. The assertion was denied by the applicant Corporation. In fact, it was admitted by the respondent himself in his cross -examination to the applicant's counsel saying that: "I have produced appointment Orders A/ 1, A/3 and A/4: but I have not produced any order which could show that my appointment was of permanent nature". As such there is no material on record either documentary or oral, except the word of the mouth of the respondent/worker himself to prove that he worked in the Corporation beyond 8‑8‑1992, and that too with gaps, as aforesaid.

7. During the course of argument, by the representative of the respondent, I specifically asked for "any document of whatever nature" to show that the respondent worked as such in the Corporation during the period 9‑8‑1992 till ‑29‑7‑1'

995. He was unable to show any document to that effect. He, however, submits that he was drawing salary on the pay sheets, which does not find a mention in his affidavit‑in‑evidence. However, the pay sheets, as alleged by the representative, have neither been produced nor summoned by the respondent. In the absence of the evidence, I do not feel satisfied that the respondent worked at all during the aforesaid period, as alleged. The submission of the representative that there is no evidence to dis lodge the averment of the respondent/worker, will not absolve the respondent to prove the allegation made by him, as it is a settled principle of law that anyone who claims a certain right in his favour against the other, the burden of proving it rests on him. According to the Islamic Principle also (

). To prove the claim is on the claimant (section 76 of Al -Majellah). See Qanun‑e‑Shahadat by Dr. Tanzil‑ur‑Rahman (PLD Publishers Lahore). This will affect the legality of the grievance notice as well as the maintainability of the grievance application, being hit by the provisions of section 25‑A, I.R.O., which, in the circumstance cannot be said to be maintainable as beyond time‑limit prescribed by the law, the cause of action having accrued on 9‑8‑1992.

8. The question whether the respondent acquired the status of a permanent workman, will be determinable on the basis of the continuous period of service. It is manifest that there is gap of two days between the first and the second appointment. There is no continuity in the period of' service. The third appointment is after a gap of two months. So in the facts and circumstances of the case, it cannot be held that there is a continuity of service of 90 days without any break. The above said appointments were al temporary in nature for two months each with gap in‑between, as aforesaid. As such, the respondent did not acquire the status of a permanent workman.

9. Since it has been held, as above, that the respondent cannot be deemed to be a permanent workman, he was not entitled to a notice of termination, as provided under Standing Order 12(3) of Standing Orders Ordinance, 1968.

10. For the aforesaid discussion, the decision of the learned Labour Court, impugned in his revision is held to be illegal and stands set aside. The revision is allowed accordingly. 11 The Corporation may, however, consider favourable re‑employment of the respondent, as he is an old worker, if there is (sic). Announced in open Court, this the 30th day of April, 1999. H.B.T./257/K/Lab. (Trib.) Revision allowed.