1990 PLP 624 (PLC)

DECISION These three appeals are directed against the orders of the learned Sindh Labour Court No. II, Karachi, dated 23‑4‑1989, whereby the grievance petitions Filed by the respondents were dismissed.

2. The brief facts of the case are that the appellants were admittedly employed as workers by the respondents whose services were terminated in July, 19m on the ground that they were `temporary' employees. After service of grievance notices the appellants filed grievance applications before the learned Labour Court. Two appellants, namely Faiz Muhammad and Muhammad Farman filed separate grievance applications before the Labour Court and appeals in this Tribunal whereas three appellants namely Faulad Khan, Umer Zada and Zahoor Ahmed filed joint grievance application and also filed joint appeal in this Tribunal. I propose to dispose of all the three appeals by this single decision as respondents in all the three appeals are the same and points of law and facts are also similar and further that cross‑examination of the respondents' witnesses was recorded only in the grievance petition filed by Muhammad Farman which was treated as their cross‑examination, with consent of the parties, in all the three grievance petitions.

3. I have heard appellants Faiz Muhammad and Faulad Khan, who are present in person and Mr. Rafat Osmani, counsel for the respondents and also have gone through the record and proceedings of the case. Other appellants and their counsel remained absent without intimation. Anyhow as the facts and point of law are similar therefore I will proceed to dispose of their case also on merits.

4. The main question that requires consideration is whether the appellants were `temporary' or `permanent' employees. Words `permanent workman' and `temporary workman' are defined under Standing Order No. I of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as `Ordinance'). The definitions are reproduced as under:‑‑ "A `permanent workman' is a workman who has been engaged on work of permanent nature 'likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, including break due to sickness, accident, leave, lock‑out, strike (not being an illegal lock‑out of strike) or involuntary closure of the establishment and includes a badli who has been employed for a continuous period of three months for one hundred and eighty‑three days during any period of twelve consecutive months." " A `temporary workman' is a workman who has been engaged for work which is of an essentially temporary nature likely to be finished within a period not exceeding nine months." It will be seen that while determining the status of workman as to whether he is `permanent workman' or `temporary workman' the emphasis is on the nature of work for which he has been employed.

5. All the appellants claim that they have worked for the respondents for a number of years and had attained the status of `permanent workman'. Both parties have produced certain letters of appointment, which I will discuss later. The letters of appointment of Faulad Khan, Umer Zada and Zahoor Ahmed are all dated 29‑3‑1988 and that appointment orders of Faulad Khan and Zahoor Ahmed purport to bear their signatures, whereas the appointment order of Umer Zada does not bear his signature. However Zahoor Ahmed as well as Faulad Khan deny their signatures on these documents. Umer Zada has produced a Social Security Card issued on 29‑9‑1987 wherein he has been shown to be an employee of the respondents. He has also produced another appointment order, dated 29‑6‑1986 whereby he was appointed in the mill. He has produced appointment orders dated 29‑6‑1986, 4‑10‑1983 and 6‑7‑1983. Similarly Zahoor Ahmed has produced his appointment orders dated 9‑5‑1982, 7‑12‑1983, 21‑11‑1985 and 29‑6‑1986. Faulad Khan has produced card of the respondents of the month of October, 1987.

6. The respondents have produced the appointment order of the appellant Muhammad Farman, dated 29‑3‑1988 and his termination order, dated 29‑6‑1988. They have produced another appointment order, dated 3‑7‑1988 and termination letter dated 15‑7‑1988. The appellant also produced his appointment letters dated 20‑11‑1984 and 29‑6‑1986 and transfer order, dated 18‑6‑1986. None of the appointment letters bears signature of the appellant. The respondents have produced the appointment order of Faiz Muhammad, dated 28‑3‑1988 and termination order, dated 6‑7‑1988. The appellant himself has produced cards of the Company of December, 1987, January, 1988 and February 1988. He has denied his signature on the appointment order and admitted his signature on the termination order, dated 6 7‑1988.

7. It may be pointed out that the documents on which the appellants have denied their signatures have not been properly proved as neither the person before whom they allegedly signed the documents has been examined nor the documents have been sent to handwriting expert for comparison of the signature of the appellants with their signature on the admitted documents, therefore, the presumption would have to be drawn against the respondents.

8. In the case of Faiz Muhammad it appears that the appellant had been working even prior to March, 1988 when he is alleged to have been appointed first as the factory cards produced by him show that he was working in December, 1987 and January and February, 1988 and these documents clearly show that he had been continuously working in the factory of respondents at least from December, 1987 to July, 1988. Admittedly he was working in the `Soap Department' and used to fill the soap boxes. There is no evidence on record to show that this work was of temporary nature and work had been completed in July, 1987. Admittedly the respondents still manufacture `soap'. Therefore the nature of work cannot be considered to be work of temporary nature to be finished within nine months. As already pointed out he has denied signature on the appointment letter dated 23‑3‑1988 and there is no evidence to the contrary. Therefore, in my opinion, the appellant Faiz Muhammad has been able to prove that he had acquired status of permanent workman as he was working in a job which was of permanent nature and had worked for more than three months viz. had completed his probationary period.

9. Appellant Zahoor Ahmed, as pointed above, has produced three appointment letters, dated 9‑5‑1982, 7‑12‑1983, 21‑11‑1985 and 29‑6‑1986, which clearly show that he was appointed from time to time. He has also produced Social Security Card, dated 29‑9‑1987 showing him as an employee of the respondents. No question has been put to him to show as to what was the nature of work and whether it was of temporary nature. There is no evidence to show that after his appointment in 1986 his services were terminated before his alleged re‑appointment in 1988. Social Security Card dated 29‑9‑1987 rather indicates that he was continued in his services, therefore, in my. opinion, he has also acquired the status of a permanent workman. As pointed out above he has denied his signature on the application for appointment, dated 29‑3‑1988 and appointment order, dated 29‑3‑1988 and his signatures have not been properly proved by the respondents. He, therefore, in my opinion, has also acquired the status of a permanent workman.

10. With regard to appellant Umer Zada, he has admitted in the cross -examination, that he has collected the full and final dues at the time of his termination of service. As such he is no more an aggrieved person and cannot seek redress from the Labour Court under section 2S‑A of the I.R.O., 1969 His appeal is, accordingly, dismissed.

11. Faulad Khan has produced a Card Exh. R/2 of the mill to show that he was working in October, 1987. He states that he had been working in the mills for two years then he was driven out from the service but apart from this card there is no other evidence in support of his contention. He further admits that he was first working in the Canteen as `Dish Washer' and then he was transferred in another section to clean passage and oiled floors. There is no evidence to show that this work was of temporary nature likely to be finished within nine months. Furthermore, the Card Exh. R/2 clearly shows that the appellant was employee of the respondent even before his alleged appointment on 29‑3‑1988. The appellant denies his signature on the application and appointment order, dated 29‑6‑1986 and these documents were not properly proved by the respondents. The respondents did not explain issuance of Exh. R/2 nor they have produced any evidence to show that the services of the appellants were terminated after October, 1987 and before his alleged appointment in March. This documentary evidence makes the contention of the appellant more probable than the general and vague statements of the respondent's witnesses and their documents which are not properly proved and appear to be suspicious. In my opinion, appellant Faulad Khan has also acquired the status of a permanent workman'.

12. Muhammad Farman, appellant has also produced appointment letters, dated 20‑11‑1984 and 29‑6‑1986. He has also produced transfer order, dated 18‑6‑196 which shows that he was transferred from Canteen to `Filling Station' in the General Shift. This transfer order also shows that he was in the employment of the respondents even before 29‑6‑1986 when another appointment order was allegedly issued. He has also produced Social Security Card dated 29‑9‑1987 which also shows him to be in the employment of the respondent. These documents clearly show that the appellant is in the employment of the respondents from 1986 to 1988 when his services were terminated on 15‑7‑1988. He admits that he was absent for few days in June but he denied that he was re -employed in July, 1988 but he states that he was on leave. The appointment orders produced by the respondents do not bear the signature of the appellant and also have riot been properly proved. No evidence has been produced to show that the services of the appellant were terminated at any stage as alleged by the respondents. Only one termination order has been produced apart from the final termination order. This termination order is dated 20‑6‑1988 but this termination order does not bear the signature of the appellant and there is no evidence to the effect that either it was served upon or sent to him by registered post on his last known address. This termination order also shows that it was sent to the appellant through his Departmental Head and not at his address which is shown in his application dated 29‑3‑1988, which also indicates that this termination order is an afterthought. The mere fact that he had been working in different capacities with the respondents would not make him temporary workman even after working for more than two years. The appointment letters produced do not show that he was appointed on any particular post or for any particular work. Therefore, in my opinion, appellant Muhammad Farman has also acquired the status of a `permanent workman'.

13. The respondents have examined Amir Akbar Khan and Ahmed Haji Ayub, who were also cross‑examined. They have not denied or disputed the documents produced by the appellants as mentioned above nor have they explained these documents nor have they produced subsequent termination orders. They have also not stated specifically as against what posts the appellants were appointed, what was the nature of their work and for how long the particular work they were doing lasted. They have also not explained how the Social Security Cards were issued by them to some of the appellants which have been discussed above and whether these Social Security Cards were cancelled after the alleged termination of their services.

14. Mr. Rafat Osmani, learned counsel for the respondents has contended that the respondents did not receive the grievance notices. The appellants have produced copies of the grievance notices alongwith postal registered receipts. The presumption would that the notices sent on correct address were received by the respondents. It may also be pointed out that in affidavit‑in‑evidence both the witnesses of the respondent have not specifically denied the receipt of the grievance notices nor the evidence of the appellants that they did send grievance notice had been challenged in their cross‑examination. In view of these facts, I am inclined to hold, that grievance notices were served upon the respondents.

15. Mr. Rafat Osmani has relied upon the case of Pakistan International Airlines v. Sindh Labour Court No. V and others P L D 1980 S C

323. However, the facts of that case are different from the facts of instant cases. In that case the employee was engaged to work on a contract work which lasted for a particular period. Under the circumstances their Lordships held that even if he had worked for more than nine months, the employee did not attain the status of permanent workman, in view of the nature of the work, which itself was of temporary nature. Mr. Rafat Osmani has also relied upon the case of Foundation Engineering Ltd. v. Second Sindh Labour Court and others 1979 P L C 316 wherein their Lordships of the Sindh High Court have held that burden of proof that he was permanent workman was on the workman. In that case, however, the evidence on record showed that the work on which the worker was employed was completed in less than nine months. As I have held the appellants to be permanent workmen therefore termination of their services on the ground that they were temporary workmen would not be considered proper or valid reason as required under Standing Order 12(3) of the Ordinance. Such an order is not sustainable.

16. No doubt the onus of proof lies upon the appellant but they have discharged the burden of proof by leading oral evidence and also have produced certain documents in evidence which have been discussed above. The respondents were employers and were in a better position as they were in possession of the relevant record. They have not produced any convincing evidence that the appellants have worked for less than nine months or that they were working on jobs which were of temporary nature. There is no evidence to, show that the jobs on which the appellants were working are no more being carried on.

17. In view of the above discussion I allow the appeal of all the appellants, except the appeal of Umer Zada, who is not an aggrieved person and whose appeal is dismissed and order the reinstatement of all the appellants, except Umer Zada. As there is no evidence to show that during the intervening period the appellants were employed or unemployed I allow them fifty per cent back benefits. The order to be implemented within one month.

18. All the three appeals are disposed of accordingly. M.Y.H./1688/Lb. S Appeals allowed.