1982 PLP 1029 (PLC(CS))

Masud Miria for Appellants. S. P. Lodhi for Respondent. Date of hearing: 30th March, 1982. This appeal is directed against a decision of the learned First Labour Court, given on 11th February, 1982, upon the grievance petition of the respondent workman, directing the appellants herein to reinstate him in service full back benefits.

2. The case of the respondent workman as disclosed in his grievance petition was that he has been in the employment of the appellant esta blishment since the past three‑and‑half years but on 21st June, 1981, at about 4:00 p. m; the Manager of the appellants herein sent for him and by extending threat to him managed to obtain his signatures on two blank vouchers and thereafter ordered him to go away as he had been removed from employment. The appellant establishment resisted the grievance petition of the respondent workman on the grounds firstly, that the respondent himself had voluntarily left after receiving his full dues as evidenced by the vouchers produced by it, and secondly, that the Standing Orders are not applicable to the appellant establishment as the number of workmen employed by it has always been less than twenty. The learned Labour Court, however, repelled both the conten tions of the appellant establishment an i passed the impugned order. 3. 1 have heard Mr. Masud Mirza, who appeared for the appellant establishment, and Mr. S. P. Lodhi, who represented the respondent workman.

4. The sole point which was canvassed before me was ‑whether the Standing Orders are applicable to the appellant establishment and the grievance petition of the respondent workman was maintainable. Since the grievance petition of the respondent workman was against his illegal termination of services, it could only be maintained if it fell under the provisions of clause (3) of Standing Order 12 read with section 25‑A, I.R.O. The Standing Orders are applicable to establish ments where the number of workmen employed exceeds

19. The number of employees in the appellant establishment at the material time, there fore, is a crucial factor to this appeal. It was sought to be argued by Mr. Masud Mirza that the burden of proof for establishing that the number of workmen employed in the appellant establishment exceeded 19 and, therefore, the Standing Orders were applicable to it, was upon the respondent workman. However as held by this Tribunal in the case of Abdul Hameed Sheikh v. Qureshi Brothers (1980 P L C 1099) relying upon the decision of their Lordships of the Supreme Court in the case of Muhammad Bashir v. Rehmat Bibi (1970 S C M R 478) the question of onus loses importance where both the parties lead evidence in support of their cps . In the instant case both the parties have led evidence. It has, therefore, to be seen whether the evidence led lends support to the claim of the respondent‑workman or the appellant establishment. The only evidence led on this issue by the res pondent workman is his bare word that the number of average employees in the appellant establishment was

27. However, in ‑his same affidavit he has given list of 29 persons, who according to him were employed in the appellant establishment at the time that he was in their employment. Apart from the fact that the list describes as many as six workers as lady workers without mentioning names, it is not clear from the evidence of the respondent workman whether all these persons were employed at one time, during the relevant period of twelve months preceding the termination of employment of the respondent, or at different times during the period of three‑and‑half years that he was in the employment of the appellant. Furthermore not one of the workmen named by him in his affidavit was examined by him. A mere list which gives names of persons does not lend support of to the claim that all those persons are employed in a particular establishment. On the other hand, not only the witness of the appellants, Anis Ismail, who is partner in the appellant establishment, has categorically denied that at any time the number of workmen in the appellant establishment exceeded 19 but he has produced the payment registers as also attendance registers and an examination thereof indicates that the number of workmen in the appellant establishment never exceeded

19. The payment and attendance registers have been produced not only for the period prior to 21st June, 1981, when the services of the respondent are said to have been terminat ed, but also for the subsequent period. These attendance registers have been checked and signed by the Factories Inspectors and this circum stance lends official support to the said registers. As far as the payment registers are concerned they contain signatures of the workman, includ ing the signatures of the workman, on revenue stamps. This circum stance, thus, gives authenticity to the payment registers. No doubt the attendance registers indicate only the names of the adult workers but it has been explained in the statement of witness; Anis Ismail, that apart from the adult workers no other person is employed in the appellant establishment.

5. In order to further examine the question whether the appellant establishment ever employed more than 19 workers witness, Anis Ismail was asked to produce and did produce a copy of the `survey report' sub mitted by the appellant establishment in compliance with the orders of the Director, Social Security Institution, dated 29th April, 1980 as to the total number of employees in the appellant establishment. The `survey report' indicates that the total number of employees in the appellant establishment was

17. This circumstance, therefore, lends further support to the contention made on behalf of the appellant establishment the number of employees in the appellant establishment never exceeded 19 an hence the Standing Orders are not applicable to it or to its employees.

6. The learned Labour Court has observed‑ that the contention of the respondent workman that more than twenty workers have been employed in the appellant establishment is indirectly supported by the wages register. It is not clear how this conclusion was reached by the learned Labour Court when he has himself observed that the wages register indi cates number of workmen from 16 to

19. It is not possible to subscribe to the view taken by the learned Labour Court, in the absence of any evidence to that effect on record, that because the wage register remained in the custody of the appellant establishment therefore the number of workmen in the establishment must be more than what is indicated in the payment register.

7. For the reasons discussed by me above, I am of opinion that there is no tangible evidence on record from which it can be concluded or inferred that the number of workmen with the appellant establishment at the relevant time was more than

19. On the other hand, the documentary evidence produced through witness, Anis Ismail seems to support the claim of the appellant establishment that the number of employees there in has always been less than twenty. I would, accordingly, set aside the decision of the learned Labour Court and allow the appeal.