1995 PLP 256 (PLC)

5.???????? The main issues in this appeal are:‑‑ (i)???????? Whether the respondent‑establishment employed less than twenty persons? (ii)??????? Whether the appellant was a workman in respondent‑establishment as a waiter? and (iii)?????? Whether the termination of the services of the appellant was illegal as it was without any order in writing. My decision on these issues is as under:‑‑ Issue No. 1: In the absence of satisfactory evidence to the contrary the Ordinance generally applies. It is for the respondent Cafe D' Khan to show, by production of daily attendance registers and other evidence, that it was not governed by the Ordinance as it was employing less than twenty persons. The appellant has claimed that the respondent‑establishment employed thirty persons. The learned counsel for the appellant has referred me to the evidence of Muhammad Nairn Khan, Partner of Cafe D' Khan, in his cross‑examination on his counter‑affidavit, admitting that there were 14 categories of the employees in their restaurant. They had two cooks one Khamirgar, one Nanwalla, four Parathawallas, four Tikka‑maker, one Assistant cook, five waiters, one pantryman and three dish‑washers. The total of these workers comes to

22. Employment of an extra Tandoorwalla and other specifically named workers has, however, been denied by him. The restaurant, thus, admittedly employed more than twenty workers. The burden of proof was on the respondent? establishment, Cafe D'Khan, to show by production of the daily attendance registers and accounts books, the list of its workers and payments made to them. But this has, obviously, not been done. The respondents, therefore, are governed by the Standing Orders Ordinance, 1968 and Standing Order 1(4)(a) was applicable to the establishment as they employed twenty or more workmen. It has been held by late Justice Inamullah Khan, Labour Appellate Tribunal, Karachi, in the case of National Advertising Limited, Karachi v. S.B. Usmani 1994 PLC 84 as under: "Lastly it was contended that the Standing Orders Ordinance did not' apply to the appellant's concern. The Labour Court rightly held that the appellant failed to produce the record to establish that it was employing less than twenty persons. In the absence of any satisfactory evidence, I would hold that the provisions of the Standing Orders Ordinance would apply to the appellant concerns." In PLD 1979 Kar. 723 also it was held in Constitution petition ‑‑ Jamil Silk Industries, Karachi v. Sindh Labour Court No. V and 2 others by Muhammad Zahoorul Haq, J. that‑‑ "regarding contention of the employer that it never employed more than twenty workers during the preceding twelve months, the burden of proof lay upon the employer, but he did not discharge, the burden by advancing positive proof, except by mere assertion in reply that the decision of the Labour Court was without jurisdiction and no reference under Article 199 of the Constitution of Pakistan was called for." Issue No. 2: The next issue is that of the appellant being a workman or not. The respondent‑establishment has claimed that he was not a regular waiter serving in the respondent‑restaurant, but he merely attended the customers outside on commission basis, as "Baahar Walla", and he was paid 3% of the amount of the bills paid by his customers. Admittedly he was serving persons outside the restaurant and handing over the bills and receiving payment for this work from the restaurant. He Would, accordingly, come under the definition of workman. Even according to the earlier decision of Inamullah Khan, J. the burden of proof is on the respondent to show that the appellant, as waiter for customers outside the restaurant, was not a workman. There can be no doubt that the appellant was doing manual work and even if he received 3% commission on the bills he would still come within the definition of a worker. The bill book of the restaurant pertaining to 1973, the relevant period, has admittedly not been produced to show the payments made to the appellant. Issue No. 3: Lastly it has been admitted that the services of the appellant were orally terminated without any order in writing stating the reasons for his termination as required under Standing Orders 12(3) of, the Standing Orders Ordinance. This mandatory requirement of law, is applicable to all the workmen irrespective of the fact whether they are permanent or temporary. The termination is, therefore, bad as it violates the mandatory provisions of the Standing Orders Ordinance. The decision of the Labour Court dismissing the application under section 25‑A of I.R.O., 1969 is, therefore, hereby set aside. The appellant may be reinstated in service. He is not, however, allowed the back benefits because it has not been claimed that all these years he was not gainfully employed elsewhere. According to Mr. Muhammad Naim Khan, Partner of the respondents, the appellant had opened his tea shop in Hyderabad. The burden of proof regarding this issue, however, lies on the appellant workman and this has not been properly discharged. H.B.T./2397/Lb.S??????? ?????????????????????????????????????????????????????????? ??????????? Appeal accepted.