1993 PLC 65 (PLP)

Date of hearing: 20th August, 1992. The appeal has been filed in the following circumstances,

2. The respondent (herein) who was the petitioner (before the Labour Court) alleged that he was a workman employed with the appellants for a number of years as a `Knitting Warper' and was earning about Rs.6,000 per month approximately. However, no letter of appointment was given to him. In November, 1990, when he asked for the same, the appellant had become annoyed and verbally terminated his services with effect from 23‑11‑1990.

3. Shorn of details, not material for the proceedings, it appears that he had submitted a grievance notice on 23‑1‑1991 but no reply was given. Hence the petition before the Labour Court.

4. In the reply statement it was maintained that the appellants were a small knitting unit with only 11 machines and never employed more than ten workers. It was also added, that it was registered under the West Pakistan Shops and Establishments Ordinance, 1969. The provisions of the Standing Orders Ordinance, therefore, did not apply and the petition was liable to be dismissed on that ground alone. It was further added that the respondent had voluntarily left his employment and was only black mailing the appellants for ulterior purposes.

5. The respondent was his own witness while Muhammad Aslam appeared on behalf of the appellant.

6. The learned Presiding officer found all the issues against the appellant and ordered the reinstatement of the respondent (petitioner therein) resulting in this appeal.

7. Mr. S.M. Yaqoob, learned counsel for the appellant maintained that the burden of proof in regard to the maintainability of the petition was on the respondent and he had, failed to affirmatively prove the same. There was nothing except his mere words. Authorities were cited in support of the contention. However, there were authorities forthcoming from respondent's side in which the contrary view had been held. It is not necessary to dilate on the same. All I need to say is that. I am inclined to agree with the view of this Tribunal in the case of Abdul Ghaffar Virani v. M/s. Roche Pakistan Ltd., Karachi 1991 PLC 657 in which it was held that once the worker had made the statement on oath that more than twenty workers had been employed by the employer, he had discharged his burden which shifted on the employer. It is they who keep all the necessary registers and record and it is for them to substantiate their assertion that the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 did no: apply to them.

8. It is an admitted position that no appointment letters are being issued by the appellant to their workers. They do not maintain any salary register and the extracts in regard to the payment of wages brought on the record for two months pertain to the period the respondent was no more with the appellants.

9. It is also to be noted that the appellants are, on their own showing, manufacturing cloth and have 11 (eleven) knitting machines installed in. their factory. It therefore stands to reason that the number of employees must be much more than they are prepared to admit. In other words I would prefer the version as supplied by the respondent with regard to the number of employees.

10. It was canvassed before me that some admissions had been made by the respondent before the Labour Authorities, when a meeting was convened by the Deputy Director Labour (Sindh). However the respondent's case is that some mischief was, done to him which on his protest came to be redressed. There is nothing more than word against word by the parties as no one has been examined from the Labour Directorate before whom the so‑called admission was made. There is no satisfactory proof that the respondent had left the employment as alleged by the appellant.

11. The assertion that the respondent has left on his own seems to be extremely tenuous and naive. I agree with the finding of the Labour Court that the doors of the factory were closed on him and that too verbally.

12. The petition had been allowed with all the back benefits. No fault can be found about the award of the back benefits as the respondent had stated in his affidavit that he was jobless. The question still remains as to what was the amount he was earning per month as a piece‑rated worker, which admittedly he was. The appellant put it as Rs.2,500 per month and on the showing of the respondent it varied between Rs.5,000 and 9,000 per month. There is no indication that he was paying any Income Tax. Looking to the rival versions, I am of the view that the emoluments be fixed at Rs.3,000 per month and it would be at this rate that the back benefits will be payable to the respondent.

13. With this modification the appeal stands dismissed. H.B.T./2081/Lb.S Appeal dismissed.