1991 PLP 885 (PLC(CS))

Date of hearing: 12th May, 1991 This is an appeal against the Order of learned Presiding Officer Sindh Labour Court No.I, Karachi dated 3-12-1990 whereby the grievance application of the appellant was dismissed.

2. I have heard Mr. Ch. M. Maarif representative for the appellant and Mr. Khursheed Ahmed Siddiqui representative for the respondent and have also gone through the record and proceedings of the case.

3. The appellant alleges, that, he was employed as workman by the respondent, when his services were orally terminated on 19-8-1989. He served grievance notice upon the respondent on 5-9-1989, which was replied to by the respondent denying the existence of relationship of employer and employee between the appellant and the respondent. The appellant, therefore, filed grievance petition before the learned Labour Court, which was resisted by respondent on the ground that there was no relationship of employer and employee and further that the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Ordinance) are not applicable to the establishment of the respondent.

4. Under section 1(4)(a) of the Ordinance, the Ordinance is applicable to:-- "(a) every industrial establishment or commercial establishment wherein twenty or more workmen are employed, directly or through any other person whether on behalf of himself or any other person, or were so employed on any day during the preceding twelve months; and

5. The appellant claims that his services were terminated in violation of Standing Order 12(3) of the said Ordinance and therefore the burden of proof was upon the appellant to prove that the Ordinance was applicable to the establishment of the respondent. There is only oral word of the appellant in the cross-examination that 21 to 22 workers were working in the establishment of the respondent. He has not given the names of workers, nor he has examined any workman in this support. As against this evidence there is evidence of Mr. Shakeel Ahmed proprietor of the respondent establishment who has stated that the workmen employed by the establishment arc less than 10 and that the establishment is registered under the Shops and Establishments Ordinance, 1969. He has produced the photostat copy of the registered Certificate as Annexures R/1, R/2 and R/3 which show that respondent's establishment is registered under the Shops and Establishments Ordinance, 1969. In the cross-examination of Shakeel Ahmed it is suggested that there are 16 looms in the factory, which he has denied. The schedule Annexure R/3 shows that factory has got 8 looms. He has stated that one weaver operates 4 looms, though it is suggested by the appellant to Shakeel Ahmed that one weaver cannot operate more than 2 looms. Even if it is held that one operator would operate 2 looms, still the number of operators required would be 4 for each shift and 8 for 2 shifts. Mr. Shakeel Ahmed has also produced the employment and remuneration register maintained by him for the year 1989, which clearly shows that at no date his establishment had employed 20 workers.

6. If the evidence of both the parties is kept in juxta position, it could not be held, that respondent had on any day during the last 12 months employed 20 workers in his establishment to attract the applicability of the Standing Orders Ordinance. 1, therefore, agree with the finding of learned Labour Court that the Standing Orders Ordinance is not applicable to the establishment of the respondent.

7. With regard to the employment of the appellant by the respondent, again there is word of appellant against word of Shakeel who denies that appellant was ever employed by the respondent establishment. Even if we believe the appellant, still in view of the fact that Standing Orders Ordinance, 1968 is not applicable to the respondent establishment, he cannot be ordered to be reinstated. Even otherwise the evidence produced by the appellant is not sufficient to hold, that he was ever employed by the respondent.

8. In view of the above discussion I find no merit in this appeal which is accordingly dismissed. H.B.T./1930/Lb. S Appeal dismissed.