1992PLC99 (PLP)

MUHAMMAD HUSSAIN ADIL KHATRI, J.

The above petition has been filed against the decision, dated 10-8-1988 given by the Sindh Labour Appellate Tribunal at Karachi, in the Appeal filed by respondents 2 and 3 i.e. M/s. Muhammad Farooq Textile Mills and M/s. Textile Management Ltd., respectively, whereby order, dated 3-11-1986 passed by Vth Sindh Labour Court was reversed. The Vth Sindh Labour Court by the aforesaid order, dated 3-11-1986 had granted application filed by the petitioner under section 25-A of the Industrial Relations Ordinance, 1969, and had ordered reinstatement of the pEtitioner in service with back benefits. The facts are that the petitioner was originally employed by respondent No.2, as a permanent workman. Respondent No3 is the sister concern of respondent No.2. After 9 years of service with the respondent No.2, the petitioner was required to join respondent No.3. While in the service of respondent No.3, the petitioner was also performing the work of respondent No.2, According to the petitioner, he was thus in the employment of respondent No.2 through respondent No.3. The service of the petitioner was terminated by respondent No.3 by order, dated 16-4-1985. The petitioner first served a grievance notice and thereafter filed application under section 25-A of the Industrial Relations Ordinance, 1969. We have heard Mr. Oazi Khalid Ali, the learned Advocate for the petitioner and Mr. Siddique Mirza, the learned counsel for respondents Nos.2 and

3. The learned counsel for the petitioner has urged that the petitioner was in fact in the employment of respondent No.2, but he was made to work for rest,)ndent No.3 also which was a sister concern of respondent No.2. According to him, the burden was on the shoulders of respondent No.2, to show that the petitioner was not in his employment. He has relied on 1990 PLC 588 (WAPDA v. S.M. Saleem and two others) and it is contended that the respondents having failed to produce the relevant record pertaining to the employees, the Court should hold that in case the record was produced it would have gone against the Respondents 2 & 3 and would have proved the case of the petitioner. On the other hand, Mr. Siddique Mirza has contended that no exception can be taken to the judgment of the Sindh Appellate Tribunal and that this Court cannot interfere in the decision of the said Tribunal which is based on findings of facts unless the petitioner can demonstrate that the findings of fact are based on no evidence. The record shows that in the grievance notice addressed by the petitioner jointly to respondents 2 and 3, he did not specify as to in whose service the petitioner was. In para. 1 of the aforesaid notice, he stated that he was first employed by respondent No. 2 and after 9 years he was required to maintain all books of accounts -of respondent No3 and other sister concerns of respondent No.2. In reply dated 30-7-1985, respondent No3 denied the allegations made in the grievance notice and took up definite position with regard to the following facts:- (a) The petitioner was employe8 by respondent No.2, from which service he resigned on his own accord by submitting resignation dated 22-10-1977 which was accepted on 26-11-1977. (b) Thereafter the petitioner was appointed by respondent No.3 with effect from 1-11-1979 by letter dated 17-1-1980. (c) Respondent No.3 terminated the services of the petitioner with effect from 16-4-1985 with one month's notice pay. (d) The provisions of Standing Orders Ordinance are not applicable to respondent No.3, as it did not employ more than 10 employees at a time since its incorporation as a Limited Company. The petitioner in his application under section 25-A of I.R.O. 1969, in para. 2, stated that he originally joined respondent No.2 and after service of 9 years he was required to join respondent No3 and in para. 3 stated that he was employed by respondent No.2 for their own work and also for the work of respondent No.3. In para. 4 he stated that at the relevant time i.e. when he was terminated from service, he was in employment of respondent No.2, through respondent No.3. Thus the petitioner did not definitely state as to in whose employment he was. In prayer clause, he sought directions against both the respondents to reinstate him with full back benefits. In his affidavit-in -evidence, the petitioner adopted the same posture. He did not deny the fact that he had resigned from the service of respondent No.2 by resignation, dated 22-10-1977 which was accepted on 26-11-1977. He also did not deny that he had joined the services of respondent No.3, under letter of appointment dated 17-1-1980 with effect from 1-11-1979. He also did not state specifically as to how many persons were employed by respondent No.3, at a time. In his affidavit-in-evidence, he generally stated that the respondents Nos. 2 and 3, are being run under a common establishment, employing more than 20 workers and, therefore, are covered by the provisions of the Standing Orders Ordinance, 1968, and further stated that respondent No.2, has got more than 20 workers employed in the establishment. But so far as respondent No3, is concerned, he did not state that the said respondent employed more than twenty workers in its establishment. The Labour Court set aside the order of termination of the petitioner and directed both the respondents (respondents 2 and 3) to reinstate the petitioner in service with full back benefits. It has been noted that respondent No.2, is a Public Limited Company and respondent No.3, is a Private Limited Company. The learned Presiding Officer of the Labour Court had no material before him to reach at the definite conclusion as to who was the employer of the petitioner. The learned Appellate Tribunal reached the conclusion that the petitioner was in employment of respondent No.3 and that provisions of Standing Order Ordinance, 1968, were not applicable to the said establishment. Inasmuch as the petitioner has not specifically denied the fact that he had resigned from the service of respondent No.2, this fact is to be considered as having been accepted by him. The above fact was communicated to the petitioner by respondent No.3, in reply dated 30-7-1985, and, therefore, he ought to have rebutted the same, if it was not true, in his application under section 25-A of I.R.O. 1969, which he did not refute and did not deny the same even when he filed his affidavit-in-evidence. He also did not deny his employment by respondent No.3, with effect from 1-11-1979, and as such he shall be deemed to accept the same. It may further be noted that the petitioner either in his application or affidavit-in-evidence did not say a word about the intregnum from 26-11-1977 to 1-11-1979, i.e. a period of about 20 months when he was not in service of either of the aforesaid respondents, although in cross -examination, he stated that during this period, he was in service with Turner Grahams which according to the petitioner is yet another sister concern of the respondents 2 and

3. Be that as it may, the petitioner having resigned from the services of respondent No.2, as far back as 26-11-1977, he cannot turn back to say that he continued to be in employment of respondent No.2, till the time of termination of his services by respondent No.3, on 16-4-1985. Further, the petitioner having admitted that he joined the service of respondent No.3, with effect from 1-11-1979, cannot be allowed to reprobate the same by alleging that he was in service of respondent No.2. Under these circumstances, no exception can be taken to the decision delivered by the Sindh Labour Appellate I Tribunal. The petition is, therefore, dismissed with no order as to costs, as the success before the Courts below was divided. H.B.T./M-1500/K Petition dismissed.