1978 PLP 194 (PLC)

S. A. NUSRAT, J. By this petition under Article 199 of the Constitution, the petitioner seeks to challenge the order of the Sind Labour Appellate Tribunal, Karachi dated 20‑12‑1976 We partly heard the learned counsel on 24‑3‑1977 and sent for the record from Sind Labour Court No. IV Karachi to examine for ourselves if there was any material in support of the contention of the learned counsel with regard to the only ground raised before us that since the fact regarding number of workmen on the roll of the establishment of the respondent No. 2 was allegedly within the special knowledge of the respondent No. 2, the burden of proof in respect of the said issue had been wrongly shifted to the petitioner. We have examined the record and heard the learned counsel at length. The only contention raised before the learned Tribunal was also that, there was violation of Standing Order No. 11 (A) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which reads as under: "Notwithstanding anything contained in Standing Order No. 11, no employer shall terminate the employment of more than fifty percent of the workmen or close down the‑whole of the establishment without prior permission of the Labour Court in this behalf, except in the` event of fire, catastrophe, stoppage of power supply, epidemics or civil commotion." In considering the above objection the learned Tribunal held that according to admitted position the Weaving Department of the mill was closed down and services of fifty workmen were terminated. The mandatory requirement of the aforesaid Standing Order is that permission of Labour Court is necessary in case termination of employment of more than fifty percent workmen is effected. The Tribunal held that the petitioner had failed to adduce any evidence to prove that more than fifty per cent of the workmen were retrenched as result of closure of the Weaving Department. Since the tribunal decided the appeal on consideration of this single issue, the learned counsel vehemently challenged the correctness of finding on this issue on the ground that the fact regarding the number of workmen on the roll of mills was a matter within the special knowledge of the respondent No. 2 and the Tribunal illegally placed burden of proof of the said issue on the petitioner. The Labour Court in its order dated 7th October, 1976 had also merely examined the question of alleged violation of the provisions of the above‑said Standing Order and that, it was the duty of the respondent No. 2 beyond any doubt that fifty per cent workers of the Weaving Depart ment, whose services were terminated pursuant to the lay off effected in the said department of the Mills, did not constitute more than fifty per cent. of the entire labour force of petitioners Factory. In the result the Labour Court gave a finding that the respondent No 2 had failed to comply with the requirements of Standing Order No. 11 (A). In the memo of appeal filed against the order of the Labour Court, the respondent No. 2 categorically asserted in para. 6 thereof that the total number of workmen employed in the respondents mills at the time of retrenchment effected by the closure of the Weaving Department was 36 and the existing number was 245, thereby sh3wing, that there was no violation of the Standing Order No. II (A). We examined the application of the petitioner made under section 25‑A of the I. R. O. and noticed that nowhere in the said application any specific allegation with regard to violation of Standing Order 11 (A) was made. In para 8 of the application a general allegation was made that service of the petitioner was terminated against the Standing Orders as a measure of victimisation. The respondent No. 2 ride paragraph 7 of their objections dated 11‑5‑1976 denied the said allegations as being incorrect and misleading. The assertion and denial were thus equally matching. It was incumbent upon the petitioner to lead necessary evidence to bring his case within the mischief of Standing Order in question, which he failed to do. The learned counsel invited our attention to the cross‑examination of the petitioner. There is nothing in the cross‑examination to warrant that 55 workers whose services were terminated en 10‑1‑1976 constituted more than 50 per cent. workmen on the rolls of the respondent No. 2. In fact the finding of the Labour Court that burden of proving this issue lay on the respondent mills concedes that there was absence of evidence on record in this respect. In order to prove violation of Standing Order 11 (A) a definite finding was necessary and to hold otherwise merely on technical ground by placing burden of proof on one side or the other it not warranted by the language of the 4 said Standing Order. The learned Tribunal however, rightly hold that burden of proof in respect of this issue was initially upon the petitioner because it is for the party who sets up a case regarding violation of any particular provision of law to prove facts necessary for the application of that particular provision bore any relief may be granted to him. The petitioner did not raise any definite contention in his application and further in spite of fact that in the memo of appeal definite assertion was made by the respondent No. 2 that the total number of workmen who remained in employment even after the retrenchment of 55 workmen effected by the closure of the Weaving Department was 36 and existing number 245, the petitioner failed to controvert the same even at the stage of appeal before the learned Tribunal. The learned counsel failed to even satisfy us by producing any evidence In support of his contention and simply laid emphasis on the technical ground regarding onus of proof. We are not satisfied with the contention that the impugned order has been passed without lawful authority and in the result the petition is dismis sed to limine. Petition dismissed.