1988 PLP 303 (PLC)

Abdul Ghani Khan for Appellant. Bashir Awan for Respondent. This is an appeal filed by the appellant‑establishment against a common impugned order, dated 21‑8‑1986, passed by the Sind Labour Court No. V I, Hyderabad, who had allowed the grievance petitions of the respondents, separately filed by them under section 25‑A, I.R.O. 1969, directing their re‑instatement in service with full back benefits.

2. Brief facts of the case are that the respondent, namely Khan Muhammad claimed to have been appointed in the appellant -establishment as Kataya since 1970 and that as the factory was closed from 8‑11‑1984 on the ground of lay‑off, therefore, he was not paid off. The respondent further claimed that he, alongwith other workers approached to the Directorate of Labour, Hyderabad and during the course of the conciliation meetings, the appellant‑establishment dis‑owned the employments and had refused to make the payments. Being aggrieved, the respondent sent grievance petition, dated 29‑1‑1985 followed by the grievance petition before the learned Labour Court on 9‑3‑1985. The other respondents, namely, Salim Akhtar, Abdul Hamid, Muhammad‑ Ahmad and Muhammad Hussain who were also laid‑off with effect from 8‑11‑84 and were also not paid off, had joined the respondent Khan Muhammad and after serving upon the appellant establishment their grievance notices on 29‑1‑1985, had also submitted their respective individual grievance petition before the learned Labour Court under section 25‑A, I.R.O. 1969. 3 The appellant establishment resisted all the petitions mainly the ground that the respondent, namely, Khan Muhammad was actually employed by it as a Kataya Contractor with effect from 24‑7‑19$4 when the appellant establishment had started an automatic balloon. According to the appellant establishment, the contract amount was Rs.259.00 per day and all the other four respondents were never employees of the appellant establishment but actually they were engaged by the said contractor, Khan Muhammad who used to pay their wages from the settled amount of Rs.259 per day. Thus, the appellant establishment has challenged the maintainability of the grievance petitions of the respondents.

4. On behalf of the respondents, Khan Muhammad was examined in his own case, while only Saleem Akhtar was examined on behalf of other respondents. One Abdul Ghani was examined and cross‑examined on behalf of the appellant‑establishment in the cases of Khan Muhammad and Salim Akhtar because all the cases were consolidated at the behest of the parties. Thereafter, the learned Labour Court has passed the impugned common order, hence, the present appeal.

5. I have heard the learned Advocates of the parties at length and have also very carefully perused the record and proceedings of the case as well as the documents brought on record. It was pleaded by the appellant‑establishment that the respondents miserably failed to adduce any independent evidence to prove their employments with the management, while, the management had clearly and specifically established, by most reliable documentary evidence that the respondent No.l,, namely, Khan Muhammad was simply a Contractor and all other respondents were his employees engaged by him. It was further argued on behalf of the appellant‑establishment that the respondents had never challenged the legality of the lay‑off or closure of the establishment at any time during the proceedings, either before the Directorate of Labour or before the learned Labour Court, therefore, they could not justify the maintainability of their grievance petitions before the learned Labour Court. The contentions of the appellant -establishment has very much force. It is an admitted position that respondents were working within the premises of the appellant -establishment but it did not mean that they were, either the employees of the establishment or they were permanently working in the establishment. Admittedly the appellant‑establishment had produced two registers before the learned Labour Court. The respondents have miserably failed to challenge the authenticity of these registers by adducing an-independent evidence or to prove the fact through expert opinion that all the entries or the signatures thereon were fabricated and forged. Simply the oral evidence of the respondents cannot be relied upon. On the other hand, the contentions of the respondents that only for the purpose of the present case the appellant -establishment had prepared bogus and forged documents and the registers and they were produced before the learned Labour Court in support of their case, have no force. Besides respondents, who were interested party, there was no independent witness to challenge the genuineness or correctness of either the signatures or the entries made in the wage Register and the Attendance Register. The plea of the respondents that the appellant‑establishment was previously convicted for non‑maintenance of the proper record of their employees has no relevancy with the present case. The most important factor is that the respondents could not prove their employments with the appellant‑establishment. The conclusion of the learned Labour Court that in the letter, dated 30‑8‑1984, Exh.R/2, issued by the Central Excise Department, one sentence was added apparently for the purpose of the present case, otherwise the added sentence did not form part of the letter, is not correct because nothing was produced in rebuttal of this letter by the respondents. In view of this factual and legal position, I would hold that the respondents were not employees of the appellant‑establishment, therefore, they were not entitled to maintain their grievance petitions under section 25‑A, I.R.O. 1969 and they are liable to be dismissed and as the impugned order of the learned Labour Court is not based upon the correct appreciation of the factual and legal aspects of the cases, therefore, it cannot be sustained.

6. For the reasons discussed by me above, I would set aside the impugned order and would allow the present appeal. The result would be that all the five grievance petitions under section 25‑A I. R.O. 1969 of all the above five respondents are hereby dismissed. The amount of back benefits deposited by the appellant‑establishment before this Tribunal is directed to be returned to the appellant‑establishment forthwith. S. Q. /1049/Lb.S Appeal allowed.