P L D 1979 Karachi 723 (PLP)

Date of hearing : 24th December 1978. This is a petition filed by Jamil Silk Industry against the order passed by Junior Labour Court No. 2, Karachi on 27‑2‑1975. By this order it was held that the termination of the services of the respondent was illegal. The facts leading to this petition are that the services of respondent No. 3 Qurban Hussain were terminated by the petitioner and thereupon, the respondent No. 3 submitted an application under section 25‑A of Industrial Relations Ordinance, 1969 before Junior Labour Court on 24‑10‑1974. The said application was heard jointly with the application of Manzoor Hussain another employee of the petitioner whose case is not before me now. The case of the applicant in the Junior Labour Court was that they were permanent employees of the petitioner and on their raising different demands from the petitioner, the petitioner stopped them gate w. e. f. 7‑9‑1974. Manzoor Hussain and Qurban Hussain were brothers. The allegation was that this gate stopping was on account of their Trade Union activities. The petitioner denied the allegation of the applicants and alleged that Manzoor Hussain had started to slow down production and he bad left the premises voluntarily on 6‑9‑1974 and did not return. The petitioner also contended that they were not having more than 20 persons working for them. The affidavits were filed before the Junior Labour Court and the deponents who bad filed affidavits were cross‑examined by the other side. The Junior Labour Court considered the evidence produced before it and after considering the said evidence and also relying upon the non‑production of any register by the petitioner, it came to the conclusion that the petitioner was employing more than 20 persons, and also came to the conclusion that the applicant before it had been victimised. It therefore ordered the re‑instatement of both Manzoor Hussain and Qurban Hussain. The petitioner went in appeal before the Labour Court but the order was sustained and the appeal was dismissed. The learned counsel for the petitioner Mr. N. I. Mehdi has attacked the order as being without lawful authority as the case was not covered by the provisions of I. L. R. O. because the petitioner had not 20 or more persons working with it. I am however of the view that the question whether 20 or more persons were employed in the factory of the petitioner was a question of fact and could not be agitated before me unless the said finding was based on no evidence at all. I however find that both the Courts below have taken into consideration the various factors and circumstances and thereafter have reached a conclusion that the petitioner was having more than 20 persons, therefore it could not be said that the finding is vitiated as being baseless. The Junior Labour Court has taken into consideration, the number of looms being worked by the petitioner and their failure to produce the register to show the number of workers. It has also considered the proceedings pending against the petitioner under the Factories Act, and the factum that the petitioner did not issue Appointment Letter, Identity Card, Holidays Books, Service books and Attendance Card to their Workmen. And `on the basis of considerations of these factors the number of workers was established to be

21. The Labour Court has come to the conclusion that the petitioner had taken the plea that they had never employed more than 20 persons during the preceding 12 months but they have not substantiated this contention and had not produced any proof in support of the same and even a suggestion to that effect was not made in the cross‑examination of the respondent. The Appellate Labour Court had rightly held that the burden of proof that petitioner employed less than 20 workers was on the petitioner and they had failed to discharge that burden. In fact the petitioner should have advanced positive proof of the fact that number of their workers was less than 20 but made no effort in this regard and made a bare assertion in their reply which could not take the place of proof. I am, therefore, of the view, that this is not a case where the finding is vitiated without being based on any evidence at all. The Junior Labour Court was the Court of facts and it has determined the number of workers on the basis of some evidence before it. Since it had the power to decide, it had the power to decide rightly or wrongly and no illegality has been committed by the Junior Labour Court in respect of this finding. Similarly the Appellate Court had proceeded on the basis of correct principles and therefore, I do not find any substance in this petition. It is therefore dismissed with costs. S. A. H. Petition dismissed.