1982 PLP 206 (PLC)

The Saifullah Industries, the respondents, herein, are unauthorizedly running an industrial establishment on plot No. K‑15, Gulbai, Mauripur, without sanction or permission from the S. I. T. E., which is the owner of the said, plot. On the same plot, but in a separate shed, there is located all establishment known as Asim Silk Factory. The proprietor of the said factory is Zafar Ahmad, the son of Muhammad Siddiq, the proprietor of Saifullah Industries An electric connection has been obtained in the name of Muhammad Siddiq of Saifullah Industries, but an unauthorized connection has been given from Saifullah Industries to Asim Silk Mills without sanction of the Karachi Electric Supply Corporation. On 2nd April, 1980, the respondent mills issued a hand written letter to some of the workers intimating them that their services were no longer required and instructing them to collect their dues, including notice pay. Four of the workmen thereupon submitted grievance petitions to the learned IIIrd Labour Court, challenging the orders of termination of their services. The learned Labour Court has dismissed the grievance petitions of 3 of the workmen who are appellants herein, while it is stated that the grievance petition of the fourth workman is pending adjudication before the learned Labour Court. The learned Labour Court, by its consolidated decision, dated 26th February, 1981, has dismissed the grievance petitions of the 3 appellants on the ground that as the Standing Orders are not applicable to the respondent establishment or its employees, the appellants were not entitled to file and maintain grievance petitions against the termina tion of their service.

2. The sole issue which has be" canvassed before this Tribunal is whether the Standing Orders are applicable to the respondent establish ment. The finding of the learned Labour Court that the Standing Orders are not applicable to the respondent establishment is based on the view taken by it that it has not been established that at any relevant time 20 or more workmen were employed therein. This finding has been challenged by Mr. Ashraf Hussain Rizvi, the learned counsel for the appellants. In support of his contention that not less than 20 workmen were employed in the respondent establishment during the relevant period, the learned counsel relied upon the oral testimony of the 3 appellant given before the Darned Labour Court. He further submitted that the stand of the respondent establishment that Saifullah Industries and Asim Silk Mills were separate establishments was false and fraudulent and that in fact both these establishments were a family concern, having of joint management, with a common electric connection, situated on a common plot, and having the workmen transferred from one establish ment to another.

3. According to the evi4ence of the appellants before the learned Labour Court, there were 40 workmen employed in the respondent establishment during the 12 months preceding the termination of their services. The breakup of all these 40 workmen, as given in their evidence, is that 14 workers were employed in the first shed in which Saifullah Industries is located, 17 workers were employed in the second shed, while 10 workers are said to have been common to both the sheds. However, out of the 14 workers said to be exclusively employed in the first shed, names of only eleven workers have been given. Similarly, in the case of workers in the second shed, the names of only 11 workers have been given, while out of the 10 workers said to be common to both the sheds, the names of only 7 workers have been given. However, none of these workmen were examined to substantiate the contention that they were employed in the respondent establishment or even in the other establishment i.e. Asim Silk Mills. Since the respondent establishment denied that 20 or more workmen were employed in their establishment and in fact contended that only 6 or 7 workmen were employed therein and further in view of to fa9t that no 4ogpepentary evidence was produced by either side to shows clay; number of employees in the respondent establishment or in, Asim Silk Mills, it was for the appellants to lead tangible evidence, particularly of some of the other workmen to establish that 20 or more workmen were employed in the respondent establishment. No doubt the failure on the part of the respondent establishment to produce any record in respect of the number of persons employed in their establishment or the record of their production and sales or even the cash registers showing the payments made to the workmen throws considerable doubt upon the evidence given on behalf of the respondent establishment, but even when due weight is given to these factors counting against the respondent establishment as also the fact that in complete contravention of the law they have unauthorizedly set up industries on a plot which they have illegally encroached upon and further they have unauthorizedly extended electric connection from one shed to another shed without permission from or intimation to the Karachi Electric Supply Corporation. I am unable to hold that there is tan gible evidence on the record from which it could be reasonably presumed that 20 or more workmen were employed in the respondent establishment, even if it be considered that this establishment was being run in common with Asim Silk Mills and the employees in the 2 concerns were inter changeable. It is an admitted position that there were only 11 looms in Saifullah Industries and 12 looms in Asim Silk Milts The common practice in textile industries in Karachi is that 3 to 4 looms are operated by one operator. This would suggest that between 6 to 8 operators are required for manning these looms. To this number may be added 6 to 8 supplementary workers such as pern winders, saringwalas, etc. There is no evidence on record to indicate beyond the bare word of the appellants that more than one shift is being worked in the respondent establishment. In the circumstances, even assuming that the 2 mills should be considered to be one establishment for the purposes of labour laws, I am inclined to the view that the appellants have failed to establish that 20 or more workmen are employed therein and consequently the Standing Orders cannot be said to be applicable to them. It has been pointed out by this Tribunal in the case of Johnson and Johnson v. Zubair. Ahmad and another (1980 P L C 620), that the burden of establishing that the Standing Orders are applicable to an establishment or that 20 or more workmen are employed therein is upon the workman or other person who makes such a claim. This burden the appellants have failed to discharge.

4. For the reasons discussed by me above, I would concur in the view of the learned Labour Court and would dismiss these three appeals. Copies of this order should be sent to the Managing Director, SITE, and the Chairman, K. E. S. C., for taking such action under the law against the respondent establishment as they consider fit. A copy of this order should also be sent to the Director, Labour Welfare, for taking necessary action against the respondent establishment for failing to maintain the registers required under the Shops and Establishments Ordinance, 1969, in view of the admission of witness Mazhar Ahmad, the manager of Saifullah Industries, that no record whatsoever is being maintained by Saifullah Industries.