1992 PLP 456 (PLC)

Gohar lqbal, Representative for Respondent. Date of hearing: 18th March, 1991. This is an appeal against the order, dated 1-12-1990 passed by the learned Presiding Officer, Sindh Labour Court No. I at Karachi, whereby the grievance petition of the respondent was allowed and he was ordered to be reinstated in service with full back benefits.

2. I have heard Mr. Khurshid Ahmed Siddiqi, the learned Advocate for the appellants and Mr. Gohar lqbal, the learned Representative for the respondent and have also gone through the record and proceedings of the case.

3. The brief facts of the case are that the respondent claims to be a workman employed in the appellant's factory when his services were terminated on 22-10-1989 by verbal orders.

4. After serving the grievance notice upon the appellant the respondent filed his grievance petition before the learned Labour Court which was resisted by the appellant inter alia on the ground that the respondent was not his' employee and there was no relationship of `employer or employee' between them.'

5. The learned Labour Court had decided the case in favour of the respondent mainly relying on the fact, that the appellant had admitted the receipt of the grievance notice, but, they did not reply the same; and secondly, that the appellant who was in possession of the Accounts Books did not produce the same to show that the respondent was not in his employment.

6. The respondent had sent his grievance notice on the address of Messrs Haji Anwarul Haq, Plot No. 19, 6.C/1, Orangi Town, Karachi and in paragraph No. 4 of his grievance petition, he has averred that the appellant received the said grievance notice and A/D receipt had been received duly signed by the appellant, but, did not reply to the grievance notice. This A/D receipt has been produced as R.W. 1/1 which purports to have been signed by one Abdul Jabbar. The appellant in paragraph 4 of his reply statement has stated that there was no valid notice of the grievance, therefore, the question of reply did not arise at all. This averment in the reply statement is not specific or the tin-ambiguous denial of the receipt of the grievance notice, but, it impliedly would show that the grievance notice was received but as it was not valid, therefore, there was no need of reply. In the cross-examination, the appellant Anwarul Haq had denied the suggestion that Exh. R.W.1/1 bears his signatures or that he had received the grievance notice. Even, this denial would not conclusively prove that the appellant, as in a factory the notices are received by some employee, did not receive the grievance notice and the appellant had not stated that Abdul Jabbar who purports to have signed this A/D receipt was not his employee. It was further contended by the appellant that the address shown in the letter was wrong as his factory is not run in the name of Messrs Anwarul Haq but it is run in the name of Messrs Naseem Silk Industries on Plot No. 16-C/1, Orangi Town, Karachi. He did not produce any documentary evidence before the learned Labour Court in support of his above contention, but, has now produced the Registration Certificate under West Pakistan Shops and Establishments Ordinance in Form `C' which shows the name of the establishment as Messrs Naseem Silk Industries and the name of the employer is shown as Anwarul Haq; while the postal address of the establishment is shown as Plot No. 16-C/I, Orangi Town, Karachi. Mr. Khurshid Ahmed Siddiqi the learned Representative for the appellant has' contended that this plot is adjacent to Plot No.

19. The respondent had stated in his cross-examination that he did not know the name of the factory as it was written in English. Normally, a worker is also not expected to know the number of plot on which the factory is situated. Admittedly the name of the employer of Naseem Silk Industry was Anwarul Haq and the respondent has asserted that he was working Jin the factory of Haji Anwarul Haq, therefore, this discrepancy with regard to the name of the Industry or number of plot on which it was situated would not materially affect the case, in view of the implied admission of the appellant with regard to the receipt of the grievance notice.

7. The main question that requires for consideration is whether there was a- relationship of employer and employee between the parties; this Tribunal time and again has held that once the employer denies the relationship of `master and servant'; the burden of proof to establish this p relationship was upon the worker. Reference has been made to the case. reported in 1982 PLC 872 and on an unreported judgment of this Tribunal in the case of Messrs Rose Silk Factory v. Wasiullah in Appeal No. KAR-99/88, decided on 18-12-1988.

8. The respondent in support of his case; apart from his own oral evidence, had led no other evidence; documentary or otherwise to show that he was employed by the appellant. He has not produced any appointment order. In the cross-examination, he has asserted that the appellant did not give the appointment order to him; but, he has not so averred in his grievance notice 8 or the grievance petition. No such question had been put to die appellant in the cross-examination that they did not issue the appointment letter to the. respondent or that they do not issue appointment order to any of the workers. The respondent did not even summon the books of the accounts of the appellant to show that he was on their pay roll.

9. Mr. Gohar Iqbal, learned Representative for the respondent had relied upon an unreported decision of this Tribunal- in the case of Pir Muhammad v. Messrs Sideman Glass Works in Appeal No. KAR-194 of 1990, decided on 20-2-1991; where this Tribunal believed an oral word of the workman with regard to his employment. However, in that case the workman had summoned the record of the employer, but the employer did not produce the same on the plea that they did not maintain the record. For that reason, and for other reasons mentioned in the said decision, the oral word of the workman was believed. The said case is obviously distinguishable from the present case. In the instant case, the learned Labour Court had wrongly shifted the burden upon the appellant to produce the record, even when it was not summoned by the respondent and had wrongly drawn adverse inference against the appellant for non-production of the record. .

10. In view of the above discussion, I allow the appeal and set aside the impugned order` of the learned Labour Court. M.Y.H./1879/Lb.S Appeal allowed.