1984 PLP 1452 (PLC)

(b) Industrial Relations Ordinance (XXIII of 1969)

Ss. 25-A & 38 (3) read with Pakistan Essential Services (Maintenance) Act (LIII of 1952), S. 3-Grievance petition before Labour Court resisted as not within jurisdiction of Labour Court on grounds of applicability to establishment concerned of provisions of Pakistan Essential Services (Maintenance) Act, 1952-Notification of Federal Government declaring service of establishment as essential service or any other document to prove same not produced-Labour Court despite absence of positive evidence coming to conclusion on presumption and surmises that establishment governed by Act ibid I-and dismissing grievance petition as not maintainable-Order of Labour Court, in circumstances, set aside by Appellate Tribunal and cases remanded to Labour Court for decision afresh after oppor tunity of proper evidence to parties. Appellant in person Mohammad Humayun for Respondent. Date of hearing: 3rd April, 1984. The appellant was dismissed from service by the respondent-Company, He filed an application under section 25-A, I.R.O., 1969 before the learn ed Labour Court. The respondents appeared and raised a legal plea to the effect that the services of the appellant, were governed by the provi sions of Pakistan Essential Services (Maintenance) Act, 1952, and, there fore, the application of the appellant was not legally maintainable. The learned counsel for the parties without adducing any evidence on the record argued the case. The learned Labour Court No. III agreeing with the respondent's legal plea held that it had no jurisdiction in the matter and therefore dismissed the application vide order, dated 8th November 1983. Aggrieved by this order, the appellant has come in this appeal.

2. I have gone through the material available on the record and have also heard the appellant in person and Mr. Mohammad Humayoon, the learned counsel for the respondents. On the admitted facts of the case, the learned counsel for the parties appearing before the learned Labour Court failed to adduce any evidence in support of their respective pleas. The learned counsel for the parties as well as the learned Labour Court lost sight of the fact that a notification. declaring the services as essential could be issued by the Central Government to remain in force for a period of 6 months which could be extended for a further period not exceeding 6 months at any time. In absence of such notification which was not produced as well as the other relevant evidence with regard to the issue involved, it could not have been possible to say as to whether the notification actually existed at the relevant time, as to whether the case of the appellant would have been governed by such a notification if at all available and as to what would be its legal implication so far as the case of the appellant was concerned. It is strange that no effort was made to produce the relevant evidence in that respect before tire learned Labour Court. The learned counsel for the respondents when questioned contended firstly, that the application under section 35-A, h. R. O., 1969 of the appellant was already dismissed on the same legal plea and, therefore, he could not file a fresh application on the same cause of action; and secondly, that the appellant in his affidavit, dated 8th May, 1983 which is available on the record of the Lower Court at paragraph 2 admitted that his case was covered by the provisions of Pakistan Essential Services (Maintenance) Act, 1952. I find no evidence on record in support of the contentions abovementioned. There is no clear admission in paragraph 2 of the affidavits, dated 8th May, 1983 filed by the appellant in that respect. No documents have been produced on the Lower Court record to show that the appellant had filed a fresh application on the same cause of action on which his earlier application was dismissed. However, during the course of the arguments in the appeal proceedings, the learned counsel for the respondent produced photostat of certain notifications accompanying an application for dismissal of appeal. I do not think he can take the appellant by surprise by producing the photo-stats of the notifications as neither he can produce such evidence at this appellate stage as a matter of course or as of right. His action is not warranted by any procedure. The burden of proof lay on the respondents to prove affirmatively that the case of the appellant would be covered by the provisions of Pakistan Essential Services (Maintenance) Act, 1952. The learned Labour Court could have neither presumed the existence of such a notification nor could have assumed its legal implica tions. It should have decided the case of the appellant on the positive evidence rather on presumption and surmises. The impugned order passed by the learned Labour Court, therefore, is not legally sustainable.

3. The result is that the impugned order, dated 8th November, 1983 passed by the learned Labour Court is set aside. The case of the appellant is remanded to the learned Labour Court with a direction to allow the parties an opportunity to lead proper evidence in the case and then dispose of it according to law. The appeal is allowed accordingly. A. H. Appeal allowed.