1992 PLP 107 (PLC)

This appeal is directed against the order, dated 21-11-1990, passed by learned Presiding Officer, Sli..Jh Labour Court No. VI at Hyderabad, whereby the grievance application of the appellant was dismissed.

2. I have heard Mr. Wahid Bux Shaikh, representative for the appellant and Mr. Muhammad Ibrahim Soomro, learned Advocate for the respondent and have also gone through the record and proceedings of the case.

3. The case of the appellant, in brief, is that he was appointed as Loom Master by the respondent establishment in his factory in 1970. The workers of Cotton and Silk Factories at Tando Adam had formed a Trade Union which was registered with the Registrar of Trade Unions, Hyderabad. As the appellant was Member of the said Trade Union, it annoyed the respondents, who asked him to resign from the Membership. When he refused to resign, the appellant was stopped to resume his duty in the factory from 1-sa 1989 without payment of salary of July, 1989. He sent grievance notice to the respondents, dated 8-8-1989, Failing to get any redress he filed grievance application which was resisted by respondents on the ground that there was no relationship of employer and employee between the parties, that they did not receive any grievance notice and that Provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the `Ordinance') were not applicable to establishment of the respondent.

4. There is only oral word of the appellant against oral word of respondent with regard to his employment by the respondent. The appellant has not produced any order of employment. However, the respondent has admitted in his cross-examination, that he does not issue 'appointment letter' to workers, because no worker was being appointed by him as the members of his house-hold only work in the factory. He is contradicted by Para 2 of his affidavit-in-evidence, wherein respondent admitted that four or five persons work in the establishment on daily wages.

5. The appellant sent grievance notice Ex. A/1 to the respondent through registered post A/D. This A/D slip has been produced as Ex. A/2 which purports to have been served upon the respondent. The respondent had denied the receipt of grievance notice but the appellant had examined Postman, Riaz Ahmed, who states that he had served the registered letter with A/D upon the respondent. He states A/D slip Ex. A/2 was same. He also produced Delivery Slip Ex. A/4 which also purports to bear signature of the respondent. The respondent in his affidavit-in-evidence has not rebutted the evidence of postman or disowned his alleged signature on Ex. A/2 or A/4. Under the circumstances I hold the grievance notice was served upon the respondent. In the grievance notice the appellant had asserted that he was employee of the respondent. The fact, that the respondent did not reply to this grievance notice denying relationship of employer and employee, would also rare presumption against the respondent. In view of the fact that the evidence of the appellant is supported by documentary evidence as discussed above and the evidence of respondent stands contradicted as pointed above, I am inclined to believe the appellant that he was employee of the respondent as a workman.

6. However, the question remains whether the Standing Orders Ordinance is applicable to the establishment or not. Under section 1(4) of the Ordinance the Ordinance applies to:-- (a) every industrial establishment or commercial establishment wherein twenty or more workmen are employed, directly or through any other person whether on behalf of himself or any other person, or were so employed on any day during the preceding twelve months". No documentary evidence has been filed by either party to show the number of workers working in the respondent's establishment. Mr. Wahid Bux, learned representative. for the appellant, has relied upon the decision of learned Division Bench of Sindh High Court Karachi in the case of M/s. Urdu Academy, Sindh v. Sindh Labour Appellate Tribunal, Karachi & others 1989 PLC 187, wherein their Lordships observed:-- "1t is an admitted position on record that the petitioner produced no evidence before the tribunals blow or before this Court to establish the number of workmen employed by the petitioner. Since the petitioner claimed exemption from the operation of Standing Order Ordinance on the ground that the total number of workers employed by them was always less than 20 the burden of proving such fact which would entitle them to claim such exemption was entirely on the petitioner. As the petitioner failed to prove the total number of workmen employed by them the learned Appellate Tribunal rightly " '''r'held that provisions of Standing Orders Ordinance were applicable to the petitioner."

7. The appellant in his affidavit-in-evidence in Para No. 9 stated that there were thirty workers working in the factory of the respondent. He has denied the suggestion in the cross-examination that only four or five persons were employed in the respondent's establishment. In his grievance notice in Para 4, he alleged that there were 16 looms in the factory of the respondent. I have already pointed out that this grievance notice remained un-replied though received by the respondent. The respondent in his evidence with regard to number of workers employed by him is contradicted by his own affidavit-in- evidence as pointed out above. The respondent's establishment, even in case when Standing Orders Ordinance is not applicable to it, will still have to be registered under Shops and Establishments Ordinance, 1968. No register as required to be maintained under the Shops and Establishments Ordinance has been produced to show that the number of workers employed by the respondent was less than twenty. In view of this factual position and the law laid down by the learned Division Bench of Sindh High Court I hold that the Standing Orders Ordinance would be applicable to the establishment of the respondent.

8. It is not the case of the respondent that appellant's services were terminated by an order in writing showing explicit reasons of his termination. A Standing Order 12(3) bars removal of service of the workman without such order in writing showing explicit reasons for his removal. The action of the respondent in disallowing the appellant from resuming his duty is not tenable. 1, therefore, set aside the judgment of the learned Labour Court and order reinstatement of the appellant. As there is no evidence to show as to whether during intervening period the appellant remained gainfully employed or not, I would award him fifty per cent back benefits. The order to be implemented within one month. H.B.T/M-1932/Lb.S Appeal allowed.