2012 PLP 73 (PLC)

ABDUL HAFEEZ CHEEMA (CHAIRMAN).

Sialkot Chamber of Commerce and Industry has assailed the judgment dated 31-3-2010 passed by the learned Presiding Officer, Punjab Labour Court No.7, Gujranwala whereby the grievance petition filed by the respondent was allowed and he was ordered to be reinstated with back-benefits.

2. The facts of the case briefly are that the respondent joined service of the appellant establishment on 6-4-2006 as Assistant Secretary. He allegedly performed his duties to the best of his ability. However, through an arbitrary order dated 13-4-2007 his services were terminated. He assailed the order mainly on the ground that he was a workman and had served for more than the statutory period and had attained permanent status. His ouster was repugnant to the provisions of Standing Order 12(3) of the Standing Orders Ordinance, 1968.

3. The grievance petition was duly contested by the appellant contending, inter alia, that the respondent was not a workman and as such was not entitled to invoke the jurisdiction of the Labour Court; that the grievance notice was not served upon the appellant and as such the grievance petition was incompetent and on merits the assertions made in the grievance petition were denied.

4. The learned Labour Court vide the impugned order passed the ex parte judgment against the appellant.

5. It is submitted by the learned counsel for the appellant that it was the duty of the respondent to have first proved his status as a workman which he has miserably failed as such the grievance petition merited dismissal but the learned Labour Court has ignored this fact. The grievance notice had not been served upon the appellant either as such the impugned judgment is in blatant violation of the law.

6. Arguments have been heard and record has been perused.

7. In support of their respective contentions the parties had led their evidence. The respondent appeared in support of his own grievance petition as PW-1. He filed an affidavit sworn by him on which the appellant had cross-examined him. The affidavit does not describe the nature of his duties. Neither this issue has been thoroughly thrashed during the cross-examination. The learned Labour Court has decided this issue in favour of the respondent in para No.8 of the judgment wherein it appears that the learned Labour Court was of the frame of the mind that it is the duty of the appellant to establish that he was not a workman. The law on the point is otherwise. It is a fundamental principle of law of evidence that onus would be on the one who asserts the fact and not the other side who refutes or contradicts the assertion. Here the learned Labour Court has erred in finding that the respondent has proved himself to be a workman. Question of workman is a fundamental question and is of far reaching consequences in labour cases and if not found to be workman the learned Labour Court stands denuded of the power to dispose of the matter.

8. I have perused the record carefully and it appears that there is no description of the nature of the duties of the respondent which could have determined his status as a workman or otherwise.

9. In this view of the matter this case merits to be sent back to the Labour Court to record evidence of the parties afresh and to decide this vital issue. As such the appeal is allowed and the impugned order is set aside. The case is remanded to the learned Labour Court with a direction that both the parties shall be afforded equal opportunities to produce their evidence and then the matter may be decided afresh not only on the point of workman but on the entire issues involved in the matter. The parties are left to their bear their own costs. The learned Labour Court shall proceed with the matter after summoning the parties. H.B.T./22/PLT Case remanded.