1989 PLP 1013 (PLC(CS))

Date of hearing: 27th November, 1988. This appeal is filed against the order passed by learned Presiding Officer, Sind Labour Court No. VI at Hyderabad, dated 30‑4‑1988, whereby he allowed the grievance petition of the respondent and ordered his reinstatement with effect from 1‑10‑1987, with consequential benefits.

2. The facts of the case are that the respondent claimed to be a seasonal worker of the appellants from 9‑12‑1986 and his services were terminated at the end of season of 1986‑87 on 23‑3‑X

987. He presented himself for re‑employment on the start of cane‑crushing season of the appellants on 1‑10‑1987, but, instead of employing him the appellants employed 7 persons, junior to the respondent. After adopting the grievance procedure, he filed the grievance petition before the learned Labour Court. The appellants resisted the petition on the ground that the respondent was not a seasonal worker but was a temporary worker.

3. I have heard Mr. Raes M. Mushtaq, learned Advocate for the appellant and Mr. Ahsanul Haq, the learned Advocate for the respondents.

4. The appellants Sugar Mills admittedly works during cane‑crushing season. Admittedly certain workers are appointed for the work during season and discharged after the season is over admittedly after restart of the new season, the appellant sends notices to such season workers and re‑employee them. The main question at issue is whether the respondent was a temporary worker or a seasonal worker. The respondent has produced his attendance card as Exh. A‑4, issued to him by Fauji Sugar Mills, the appellants. It is for the month of March, 1987. It is a printed card of the appellants, Fauji Sugar Mills and is issued in the name of respondent, Ali Bux son of Poto Khan. It shows that he was employed in department `Laboratory' as a Seasonal Lab. Boy. It may be pointed that this is a printed card where the staff number, the month and year, name of the respondent, department and designation are written in hand. Words `permanent/seasonal' are printed. Word `permanent' appears to have been scored off in the red ink while word `seasonal' is tick‑marked. The appellants allege that this is a forged card. It is a settled law that the burden of proof of forgery is upon the party who alleges, forgery. Apart from the oral word of the appellant's witness, there is no evidence to show that there is a forgery. The appellants through Subedar Muhammad Yousuf have produced 2 other cards in the name of respondent, Ali Bux as R‑5 and R‑

6. They are for the months of December and February. These 2 cards show both the printed words `permanent' and seasonal' are scored off and the word `temp: is written in the red pen. The witness has admitted in his cross‑examination that the word `temp' had been written by him and that it was necessary on account of appointment form. He was shown the attendance card of the respondent for the month of January and he admitted that in this card, the word `temporary' is not recorded. This card also shows that the word `permanent' is scored off and the word `seasonal' is intact. He has admitted in his cross‑examination that the .attendance card Exh. A‑4, produced by the respondent does not indicate any forgery.

5. If the evidence of this witness of the appellant and the 3 attendance cards of the respondents are considered in juxtaposition it would be clear that only 2 categories of workers were employed by the appellants viz., `permanent' and `seasonal'. Had they been employing any `temporary' worker, such word would also have been printed upon these printed cards. As pointed above, the worker in the Sugar Mills is of the seasonal nature during sugar cane‑crushing season, therefore, it looks more plausible that they would be employing 2 categories of workers viz. `permanent' who work permanently and additional workers as `seasonal' who work only during the crushing season.

6. The appellant have relied upon appointment letter of the respondent which has been produced as Exh. R‑1 by Major (Retd.) Muhammad Aslam, Personnel Manager of the appellants mills. It no doubt shows that respondent has been appointed `temporarily' but this witness had admitted in the cross-examination that he has not filed this letter with reply statement and also not mentioned about it in the reply statement. He has denied that it was a forged document. He has further admitted that they had not pleaded in the reply that R‑4 was a forged document. Even, in his cross‑examination, he states that only entry on this card showing the respondent `seasonal' is forged. In other words, he does not allege that the card is forged, but, only the entry `seasonal' is forged. I have already pointed that it is a printed word on the card and the question of forgery of this word does not arise. Even, the 2 other attendance cards produced by their witness, Subedar Muhammad Yousaf which are Exhs. R‑5 and R‑6 also show the printed word `seasonal' on the cards. The allegation that attendance card showing the respondent being a `seasonal' employee is forged is not only not proved by the appellants on whom the burden of proof lies, but, also stands belied by their own admissions and by documents produced by them. As regards the appointment order, it is a document produced by the party on a printed form of their own officer which they would prepare at any time. The contention of the learned Counsel of the respondent that it was subsequently manipulated by the appellants appears to have some force because admittedly this document was nether filed with the reply statement of the appellants nor it was mentioned in the reply statement. In view of the above discussion, in my view, the learned Labour Court had rightly held the respondent to be a `seasonal worker'.

7. Major (Rtd.) Muhammad Aslam has himself admitted in cross -examination that they had issued publication calling upon all seasonal workers to report for duty on the commencement of the season and also sent notice to all seasonal employees. The proviso to Standing Order 14 provides that "in the case of a seasonal factory within the meaning of section 4 of the Factories Act, 1934, a workman who was retrenched in one season and reports for duty within ten days of the resumption of work in the factory in the immediately following season, shall be given preference for employment by the employer." It may be noted that the word used here is a `workman' and the definition of workman in Standing Order 2(i) is wide enough to include even temporary workers. Admittedly the services of the respondent were terminated by the end of crushing season. He states to have reported for re‑employment on 1‑10‑1987 when the next crushing season started. It has not been specifically denied that he presented himself for re‑employment on 1‑10‑1987, and it is also not specifically denied that 7 persons, who, according to the respondent were junior to him, had been re‑employed. According to the list of the employees produced by the appellants as Exh. R‑4, the first, 3 employees in the list were employed for first time in the month of November, 1987, while the last 4 were also appointed for the first time after the appointment of the respondent on 9‑12‑1986.

8. Both the parties have relied upon certain case‑law with respect to the `permanent' and `temporary' workman, but, I need not discuss the law as the respondent is neither a permanent workman nor a temporary workman, but, simply a workman working in a `seasonal factory' and his posting starts and l terminates with the season. His right is protected under the proviso of Standing Order 14 in which as I have already pointed the word `workman' is used which includes both `permanent' as well as `temporary' workers.

9. In view of the above discussion, I find no merit in this appeal, which is dismissed. A.E./1339/Lb. S Appeal dismissed.