2018 PLP 245 (PLC)

ALI SAIN DINO METLO, MEMBER.

The appellant has challenged order, dated 06 April 2017, of the Sindh Labour Court No.03, Karachi, dismissing his grievance application No.10 of 2015, for his reinstatement in service with back benefits.

2. Briefly, the facts are that, on 18 March 2015, the appellant filed grievance application contending that he was permanent worker, working as weaver, since about six years, lastly drawing monthly salary of Rs.16,380/-, in the establishment of the respondents, who removed him from service wrongfully on 23 January 2015, when chowkidar of the factory did not allow him to enter the factory, telling him that the owner, Seth Maqsood, had verbally terminated his service.

3. In their reply statement, the respondents contended that they had not employed the appellant at anytime and, therefore, the question of removing him from service did not arise.

4. The appellant examined himself; while the respondents examined their authorized person, Kashif Jawed. According to the Labour Court, oral statement of the appellant was not sufficient to prove that he was employee of the respondents.

5. The case of the appellant was that the respondents, as per their practice, had not issued him any document of employment. The respondents did not specifically deny their practice of not issuing employment documents to their workers. They did not prove or even plead that they issued employment documents to their workers. They did not produce any copy of any employment document issued to any of their workers, nor their witness stated that they issued employment documents to their workers. In his cross-examination it was not suggested to the appellant that they issued employment documents to their workers. On the contrary, a suggestion was put to the appellant that the respondents did not issue any identity card to their workers, which he accepted as correct. It is, therefore, clear that the appellant's contention about the respondents' practice of not issuing employment documents to their workers has gone unchallenged and un-rebutted. Through their suggestion put to the appellant about not issuing any identity card to their workers, the respondents, in a way, admitted their practice of no issuing employment documents to their workers.

6. The Labour Court has given finding against the appellant mainly because he had failed to produce any document about his employment. When the respondents were not issuing employment document to their workers, it was not possible for the appellant to produce his employment documents. The record of their employees was in the exclusive possession of the respondents. In case the appellant was not their employee, the respondents would have produced their record to show that he was not among their employees. They have not assigned any reason for withholding the record. According to Article 129(g) of the Qanun-e-Shahadat, 1984, the presumption will be that the record contained evidence against the respondents.

7. In the case of Crescent Textile Mills Ltd. v. Abdul Aziz and another (1991 PLC 494 Lahore), it was held by the Lahore High Court that bare statement of a worker was sufficient to shift the onus to the employer to produce record of his employees, including compulsory registers of attendance and wages, and prove that he was not among his employees. Similar view was taken by the High Court of Sindh in the case of Liaquat Ali v. Cafe Momin (2007 PLC 686 Karachi).

8. The two decisions of this Tribunal, reported as 1997 PLC 13 and 2001 PLC 223, relied on by the Labour Court, are distinguishable. In the latter case the employer had produced his record showing that the worker was not among his employees and in both the cases there was nothing to show that it was practice of the employers not to issue employment documents to their workers.

9. Standing Order 12(3) provided that a worker shall not be removed from service except by an order in writing explicitly stating reasons for the action taken. In this case there is no written order for the removal of the appellant from service. The case of the respondents is not that they had rightfully removed the appellant from service. Their case is that he was not their employee. Nevertheless, they did not produce record of their employees to show that he was not among their employees. In such circumstances, particularly when it was practice of the respondents not to issue any employment document to their employees, it can be safely said that the appellant was their permanent worker and they had removed him from Service wrongfully.

10. As for a just and proper order in the fact and circumstance of the case, reinstatement of the appellant in service will not be viable or productive. The relations between the parties are so estranged that the respondents are not prepared to acknowledge the appellant as their worker. No useful purpose will be served to impose an unwanted worker upon an unwilling employer. The litigation has taken a long time of three years. It is not believable that the appellant was sitting idle and doing nothing for all these three years. It will, therefore, be just and proper to award a reasonable compensation to the appellant in lieu of reinstatement in service.

11. Except for the Industrial Relations Ordinance, 2002, there was no specific provision for the award of compensation in any industrial relations Ordinances/Acts. Specific provision for reinstatement in service was also not there and the courts passed orders for reinstatement in service as well as awarded compensation, instead of reinstatement, under the general power of passing any 'just and proper order' provided under the statutes.

12. The Industrial Relations Ordinance, 2002, contained provision for the award of compensation equal to salary of not less than 12 months or more than 30 months. This was introduced for the first time in the field of labour laws and had the effect of restricting discretion of the court in fixing the amount of compensation. Absence of similar provision in the reenacted laws will have the effect of removing the restrictions on the exercise of discretion in fixing the amount of compensation and not of removing the power of awarding the compensation. Before promulgation of the Industrial Relations Ordinance, 2002 also, the courts awarded compensation to workers in the cases of their removal from service, considering facts and circumstances of each case. For this, reference may be made to the cases of Glaxo Laboratories Pakistan Limited v. Pakistan and others (PLD 1962 SC 60) and Abbasi Textile Mills Limited v. Industrial Court and others (PLD 1966 SC 765).

13. Keeping in view all the facts and circumstances of the case, including length of appellant's service, conditions of unemployment prevailing in the country and status of the respondents, reasonable compensation of Rs.200,000/- (rupees two hundred thousand) is awarded to the appellant as full and final payment for severance of his employment relationship with the respondents, which the respondents are directed to deposit within 60 days for payment to the appellant. The appeal is dispose of accordingly. Announced in open court on this 15th day of January, 2018. HBT/2/SLT Order accordingly.