1999 PLP 393 (PLC)

This appeal under section 37(3), of the Industrial Relations Ordinance, 1969 arises out of decision, dated 4th July, 1998 (wrongly stated in the memo'. of appeal as 22‑4‑1998) passed by the Third Sindh Labour Court wherein, it was inter alia, stated that the appellant has been a permanent worker in the respondent establishment as a Helper since last one year. The respondent terminated the appellant's service on 18‑2‑1997, without issuing any letter of termination. Grievance notice was, thus, sent on 7‑3‑1997 by registered post which was refused by the respondent. It was, therefore prayed in the grievance petition that the appellant may he ordered to be reinstated in service with full back benefits. On the other hand, the respondent, in its reply 'statement, pleaded that the appellant was employed as temporary worker on daily‑paid basis (with gaps) till 15‑10‑1995 and that the appellant's daily wage employment came to an end on 15‑ill‑1995. It was further alleged in the reply statement that the grievance, notice was belated and time‑barred and as such, the grievance petition, filed by the appellant, is not maintainable.

2. The appellant examined himself as his own witness. Although lie also filed affidavits‑in‑evidence of one Ghulam Hussain and Abdul Qayum Ali, as his witnesses who, however, declined to appear for cross- examination. The learned Presiding Officer, in fact, recorded his statement on 14‑3‑1998 declining to give evidence and withdrawing his affidavit filed in the Court on behalf of the appellant.

3. The appellant produced no documentary evidence, whatsoever, whereas; the respondent, in support of the plea that the appellant was only daily wages worker, produced pay sheet of daily wages temporary workers of the last daily wage employment dated 15‑10‑1995 which, among others, is duly signed by the appellant in token of receipt of Rs.50 as his daily wage for 15‑10‑1995 on revenue stamp. Such sheet is duly initialled by the respondent company.

4. I have heard Mr. Shamsher Khan, representative for the appellant and Syed Qamaruddin Hassan, Advocate of the respondent. The learned counsel for the respondent submitted that the appellant, being a daily wage worker, was not entitled to any notice for termination of employment. He referred to sub‑clause (2) of Standing Order No. 12 of, Standing Orders Ordinance, 1968, which reads as under:‑‑ "No temporary workman, whether monthly‑rated, weekly‑rated, daily‑rated or piece‑rated and no probationer or Badli, shall be entitled to any notice if his services are terminated by the employer; nor shall any such workman be required to give any notice or pay any wages in lieu thereof to the employer if he leaves employment of his own accord." In support of his submission, reliance was placed by him on the case of Muhammad Yaqub v. Punjab Labour Court and 5 others (1990 SCMR 15395 wherein it was observed that a person, who served as a work‑charged employee on daily wages and was not paid wages for Fridays, cannot claim to be a permanent workman even if he served for eight years.

5. In the instant case, the appellant was employed on daily wage basis with gaps of Saturdays and Sundays, cannot, thus, be taken to be a permanent worker and is not entitled to the protection under the Standing Orders Ordinance, 1968. The learned Labour Court has, therefore, rightly held that the appellant was a daily‑paid worker and that the relationship of employee and employer does not exist, as contemplated by law.

6. The learned counsel for the respondent further contended that the grievance notice was time‑barred. In the instant case, daily wage employment of the appellant came to an end on 15‑10‑1995. The grievance notice should have been delivered to the respondent within three months, whereas, the same was sent on 7‑3‑1997. It, therefore, appears that the grievance notice was given by the appellant to the respondent much after the stipulated time of three months as provided In subsection (1) of section 25‑A of the I.R.O., 1969. Consequently, the very application under section 25‑A of I.R.O. was not maintainable.

7. Incidentally, it may be pointed out, that the learned Presiding Officer did not decide this point although, admittedly it was taken not only in the reply statement to the grievance notice, but also in the written arguments, submitted by the respondent.

8. To conclude, the onus of proof of the assertions, made by the appellant, was on him, which he failed to discharge. The learned Labour Court was, therefore, justified to dismiss his grievance application.

9. In result, the appeal has no force and is dismissed accordingly. H. B. T./310/K/Lab. (Trib.) Appeal dismissed.